Slater v . Verizon CV-04-303-SM 03/03/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jonathan B . Slater, Plaintiff
v. Civil N o . 04-303-SM Opinion N o . 2005 DNH 023 Verizon Communications, Inc., Defendants
O R D E R
In this case, removed from the New Hampshire Superior Court,
Jonathan Slater sues for damages arising from the termination of
his employment by Telesector Resources Group d/b/a Verizon
Services Group (“Verizon”). Before the court is Verizon’s motion
to dismiss seven of the nine counts in the complaint. Plaintiff
objects. For the reasons given below, defendant’s motion to
dismiss is granted in part and denied in part.
Standard of Review
A motion to dismiss for “failure to state a claim upon which
relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the
court to conduct a limited inquiry, focusing not on “whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v .
Rhodes, 416 U.S. 2 3 2 , 236 (1974). When considering a motion to
dismiss under Rule 12(b)(6), the court must “accept as true the
factual allegations of the complaint and construe all reasonable
inferences therefrom in favor of [plaintiff].” Perry v . N.E.
Bus. Serv., Inc., 347 F.3d 343, 344 (1st Cir. 2003) (citing
Beddall v . State S t . Bank & Trust Co., 137 F.3d 1 2 , 16 (1st Cir.
1998)). “A district court may grant a 12(b)(6) motion to dismiss
for failure to state a claim upon which relief can be granted
only if ‘it clearly appears, according to the facts alleged, that
the plaintiff cannot recover on any viable theory.’” Pomerleau
v . W . Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004)
(quoting Correa-Martinez v . Arrillaga-Belendez, 903 F.2d 4 9 , 52
(1st Cir. 1990)).
Background
The facts of this case, as drawn from plaintiff’s complaint,
are as follows.
Slater was hired by Verizon as a financial analyst in
December, 1996. (Compl. ¶¶ 4-5.) At all times relevant to this
2 matter, he has also served as an officer in the New Hampshire
Army National Guard, rising to the rank of Major. (Compl. ¶ 3.)
In early October, 2001, immediately following the September
11th terrorist attacks in New York, Pennsylvania, and Washington,
D.C., Slater was called to active duty. (Compl. ¶ 10.) He
promptly notified several Verizon officials of his activation,
including his direct superior, Nicholas Bonanno (Customer
Operations Financial Manager), Thomas S . Gardnier (Customer
Operations Area Manager), and Ellen Connors (Executive Assistant
to Edward Kmiec, who was superior to Bonanno and Gardnier).
(Compl. ¶¶ 10-13.) (Plaintiff does not, however, allege that he
submitted a Verizon military leave form, as is apparently
required by his employer’s policies. (Compl. ¶ 6.))
Slater served on active military duty for approximately
eight months, all in New Hampshire, as his assignment involved
securing airports in Manchester, Newington, and Lebanon. (Compl.
¶¶ 1 7 , 31.) While on active duty, Slater continued to do work
for Verizon. In the words of his complaint:
3 Mindful of the needs of his employer, Major Slater felt compelled to continue to perform work for Verizon while he was on active military duty.
Mr. Bonanno accepted Major Slater’s offer and allowed him to perform work for Verizon continuously while Major Slater was on active military duty. Major Slater, inter alia, completed reports, analyzed data, helped negotiate a large fire casualty loss, and attended meetings in and outside of New Hampshire.
(Compl. ¶¶ 1 9 , 22.) While on active duty, and while continuing
to perform work for Verizon, Slater maintained contact with
Bonanno and others by telephone, e-mail, and in person. (Compl.
¶ 23.) He submitted expense reimbursement requests, which were
approved by Verizon. (Compl. ¶ 24.) Bonanno also approved the
installation of a DSL line to Slater’s home, at Verizon’s
expense, to facilitate Slater’s ongoing work for Verizon.
(Compl. ¶ 25.) Slater performed at least some work for Verizon
during every pay period he was on active duty. (Compl. ¶ 30.)
While Slater was on active duty, he received his full
civilian salary from Verizon, in addition to his military pay.
(Compl. ¶ 27.) Under Verizon’s “Military Leave Policy,”
employees called to active military duty were entitled to be paid
4 compensation to supplement their military pay, without any
obligation to perform work for Verizon while on military duty.
(Compl. ¶¶ 15-16.)
Slater’s military duty ended, and he returned to full-time
work for Verizon, in May, 2002. (Compl. ¶ 31.) In August, 2002,
Verizon began an investigation into whether Slater had defrauded
the company during the time he was on active military duty.
(Compl. ¶ 34.) Slater cooperated with the investigation, which
took approximately one year to complete. (Compl. ¶¶ 34-35.) In
July, 2003, Slater informed Richard Jimmo, Verizon’s acting
finance manager, that he intended to return to active military
duty. (Compl. ¶ 38.) In August, 2003, approximately thirty days
after informing Jimmo of his plans to return to active duty,
Slater was discharged from Verizon. (Compl. ¶ 6.)
Slater’s notice of termination stated that he had “failed to
submit the required Verizon Military Leave forms after being
activated for Military duty.” (Compl. ¶ 6.) The termination
notice further stated: “During the period when you were on active
military duty, you also collected your full Verizon salary in
5 addition to being paid for military duty. These actions are
direct violations of Verizon’s Code of Business Conduct, and
therefore, your employment with Verizon is being terminated
effective today.” (Compl. ¶ 6.) Verizon had a company policy
related to recovery of overpayment of wages, but Slater was not
offered an opportunity under that policy to repay the amounts in
dispute. (Compl. ¶¶ 39-40.)
When asked by potential employers why he left Verizon,
Slater has given the reasons set out in his notice of
termination. (Compl. ¶ 43.) Verizon, as well, has advised
potential employers of those reasons. (Compl. ¶ 44.)
Based upon the foregoing, Slater asserts claims for wrongful
termination (Counts A - D ) , violation of N . H . R E V . S T A T . A N N . ( “ R S A ” )
§ 110-C (Count E ) , violation the Uniformed Services Employment
and Reemployment Rights Act ( “ U S E R R A ” ) , 38 U . S . C . § 4301 et seq.
(Count F ) , violation of the Fair Labor Standards Act ( “ F L S A ” ) , 29
U . S . C . § 201 et seq. (Count G ) , and defamation (Counts H and I ) .
Defendant moves to dismiss the claims for wrongful termination,
6 violation of RSA 110-C, violation of the FLSA, and one of the
defamation claims (Counts A-E, G, and I ) .
Discussion
Count A
In Count A , plaintiff asserts a claim for wrongful
termination, based upon an allegation that he was discharged
because of his membership i n , and his intent to return to active
military duty with, the Army National Guard. Defendant moves to
dismiss on grounds that New Hampshire law bars plaintiff from
asserting a common law wrongful discharge claim, due to the
availability of an adequate federal statutory remedy under
USERRA.
New Hampshire’s common law of wrongful termination is fairly
summarized as follows:
In order to have a valid claim for wrongful termination, the plaintiff must show: “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.”
7 Wenners v . Great State Bevs., Inc., 140 N.H. 1 0 0 , 103 (1995)
quoting Short v . Sch. Admin. Unit N o . 1 6 , 136 N.H. 7 6 , 84
(1992)). Moreover, “case law [in New Hampshire] makes clear that
the public policy violated by a wrongful discharge ‘can be based
on statutory or nonstatutory policy,’” Karch v . BayBank FSB, 147
N.H. 525, 537 (2002) (quoting Cilley v . N.H. Ball Bearings, Inc.,
128 N.H. 4 0 1 , 406 (1986)). And, the requisite public policy
apparently can arise from federal as well as state statutory
provisions. See, e.g., Bliss v . Stow Mills, Inc., 146 N.H. 550
(2001).
Defendant argues that the wrongful discharge claim in Count
A must be dismissed, because the public policy on which it is
based arises from USERRA, and USERRA provides plaintiff with an
adequate statutory remedy. The New Hampshire Supreme Court has
explained, as a general proposition, that “a plaintiff may not
pursue a common law remedy where the legislature intended to
replace it with a statutory cause of action.” Wenners, 140 N.H.
at 103 (citing Howard v . Dorr Woolen Co., 120 N.H. 295, 297
(1980)). But there appears to be no reported decision by the New
Hampshire Supreme Court in which a plaintiff’s common law
8 wrongful discharge claim has been dismissed due to the existence
of “an adequate statutory remedy.”1 Indeed, in two recent cases,
plaintiffs have been allowed to pursue common law wrongful
discharge claims in which the public policy element has been
1 In Wenners, the defendant sought dismissal of a wrongful discharge claim on grounds that plaintiff asserted that he had been dismissed in contravention of a public policy arising from the federal bankruptcy code. 140 N.H. at 102. The Supreme Court held that because the bankruptcy code prohibited the employer’s alleged conduct, but “does not evidence an intent to supplant a common law cause of action for wrongful termination,” id. at 103, the code both provided an adequate public policy to support a wrongful discharge claim, and did not bar the plaintiff’s common law cause of action. Id. at 104. In Howard, the principal opinion on which Wenners relies for the proposition that “a plaintiff may not pursue a common law remedy where the legislature intended to replace it with a statutory cause of action,” 140 N.H. at 103, the plaintiff asserted a claim for wrongful discharge, alleging he had been discharged “because of his age, his suffering from angina, and for the purpose of denying him his accrued retirement benefits,” Howard, 120 N.H. at 297. In affirming the trial court’s decision to grant the defendant’s motion to dismiss, the Supreme Court explained that discharge due to sickness or due to age falls outside the category of discharge for “perform[ing] an act that public policy would encourage, or refus[ing] to do that which public policy would condemn.” Id. (citations omitted). Explaining that getting sick or growing old are not acts that public policy would encourage, for purposes of a wrongful discharge claim, the court went on to observe that “[a] discharge due to sickness . . . is generally remedied by medical insurance or disability provisions in an employment contract,” id., and that “[t]he proper remedy for an action for unlawful age discrimination is provided for by statute,” id. (citations omitted). (However, because the plaintiff’s claims were dismissed for failing to allege an adequate public policy, the existence of a statutory remedy for age discrimination was not necessary to the court’s decision.)
9 supplied by statutes that also provided specific remedies. In
Karch, the plaintiff was allowed to pursue a wrongful discharge
claim based upon an alleged violation of a public policy
established by the New Hampshire Whistleblowers’ Protection Act.2
147 N.H. at 537. And in Bliss, the plaintiff was allowed to
pursue a wrongful discharge claim that involved a public policy
expressed by the federal Surface Transportation and Assistance
Act of 1982 (“STAA”). 3 146 N.H. at 556 (holding that the STAA
did not preempt common law cause of action for wrongful
discharge, and regarding preemption analysis as dispositive of
defendant’s Wenners argument).
Based upon Karch and Bliss, it is evident that the rule
established in Wenners provides no basis for dismissing Count A .
2 The Whistleblowers’ Protection Act, RSA 275-E, provides, inter alia, that an employee claiming to have been discharged for reporting, in good faith, an employer’s violation of the law, is entitled to a hearing before the commissioner of labor and an appeal pursuant to RSA 541. The statute affords remedies in the form of back pay, reinstatement, and other equitable relief. 3 The STAA contains an anti-retaliation provision that gives truck drivers the right to file complaints with the Secretary of Labor if they believe they have been discharged for reporting their employers’ STAA violations. Bliss, 146 N.H. at 552.
10 Moreover, while USERRA provides individuals such as plaintiff
with a cause of action, it also specifically provides that
[n]othing in this chapter shall supercede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, pla n , practice, or other matter that establishes a right or benefit that is more beneficial t o , or is in addition t o , a right or benefit provided for such person in this chapter.
38 U.S.C. § 4302(a). The federal statute providing the public
policy for the wrongful discharge claim in Bliss appears to
contain no such provision and, therefore, seems even less
amenable than USERRA to parallel state and federal remedies.
Given the rather plain language of USERRA, it is apparent that
Congress did not intend to replace any common law remedy that
might also be available to plaintiff.4 Thus, neither the rule
stated in Wenners, nor preemption principles, provide a basis
upon which to dismiss Count A .
4 USERRA does have a preemption provision, but that provision applies only to state laws that limit the rights or benefits available thereunder, or that impinge upon the exercise of those rights, see 38 U.S.C. § 4302(b), not to state laws that expand upon or supplement the rights available under the USERRA.
11 None of the three cases cited by defendant requires, or even
supports, a contrary result. In Harris v . City of Montgomery,
322 F. Supp. 2d 1319, 1329 (M.D. Ala. 2004), the court granted
defendants’ motion for summary judgment on plaintiff’s Fourteenth
Amendment equal-protection claim, arising from alleged
discrimination based upon the plaintiff’s military status, on
grounds that the constitutional claim, if one existed at all,
duplicated a USERRA claim the plaintiff had asserted in the same
action. In Satterfield v . Borough of Schuylkill Haven, 12 F.
Supp. 2d 423 (E.D. P a . 1998), the court relied upon the doctrine
of constitutional claim preemption to dismiss the plaintiff’s
equal-protection claim, brought under 42 U.S.C. § 1983, ruling
that the plaintiff could not bypass USERRA’s “comprehensive
enforcement mechanism . . . by alleging a constitutional
violation and bringing suit directly under § 1983.” Id. at 437.
While both Harris and Satterfield stand for the proposition that
USERRA “provides a comprehensive remedial scheme for
discrimination on the basis of military service,” Harris, 322 F.
Supp. 2d at 1329, thus depriving a USERRA plaintiff of a separate
constitutional claim arising out of the same operative facts,
neither case holds that Congress intended USERRA to replace
12 common law remedies, which, under New Hampshire law (i.e.,
Wenners), is the determinative issue.
Similarly, in Schmauch v . Honda of America Manufacturing,
Inc., 311 F. Supp. 2d 631 (S.D. Ohio 2003), the court relied upon
Ohio law to dismiss the plaintiff’s common law wrongful discharge
claim as duplicative of his USERRA claim, but did so because
USERRA “provides adequate remedies such that the public policies
established by the USERRA are not jeopardized by denying Schmauch
the ability to pursue a tort action for a violation of public
policy,” id. at 635. But again, the determinative factor under
New Hampshire law, as established in Wenners, is not whether
USERRA provides an “adequate remedy,” but rather, whether the
legislature, in this case the U.S. Congress, intended to replace
common law remedies, a question not addressed by the court in
Schmauch, and a question specifically answered by the Congress:
it had no such intent; in fact it intended that no such remedies
would be adversely affected.
13 Count B
In Count B , plaintiff makes a claim for wrongful
termination, asserting he was discharged because he insisted upon
being paid his full salary for each pay period in which he
performed work, as was his right as an exempt, salaried employee.
Defendant moves to dismiss on grounds that New Hampshire law bars
plaintiff from making a common law claim, due to the existence of
a statutory remedy under the Fair Labor Standards Act. Defendant
is entitled to dismissal of Count B , but for a different and more
fundamental reason than the one identified, namely, the absence
of a public policy that was offended by his alleged dismissal for
demanding to be paid in full for every pay period during which he
performed any work for his employer.
“[O]rdinarily, the issue of whether a public policy exists
is a question for the jury, [but] at times the presence or
absence of such a public policy is so clear that a court may rule
on its existence as a matter of law . . .” Short, 136 N.H. at 84
(citing Cloutier v . Great Atl. & Pac. Tea Co., 121 N.H. 915, 924
(1981)). This is such a time. While the “case law [in New
Hampshire] makes clear that the public policy violated by a
14 wrongful discharge ‘can be based on statutory or nonstatutory
policy,’” Karch, 147 N.H. at 537 (citation omitted), the statute
to which plaintiff looks for a public policy to support his claim
simply does not provide the right he thinks it does. The FLSA
does not grant exempt salaried employees a right to be paid their
full salaries for every pay period during which they perform any
work for their employers.
The source of confusion is probably the Code of Federal
Regulations, which does include the following language: “an
exempt employee must receive the full salary for any week in
which the employee performs any work without regard to the number
of days or hours worked.” 29 C.F.R. § 541.602 (previously
codified at 29 C.F.R. § 541.118). However, the quoted language
does not confer a right upon salaried employees; it is actually
part of the “salary basis” test for determining whether an
employee is exempt from the FLSA overtime requirements. It
provides that if an employer wants to treat an employee as exempt
from the FLSA’s overtime requirements, then that employee must be
paid on a salary basis rather than an hourly wage basis. Because
the FLSA does not afford exempt employees the right to be paid
15 their full salaries for every period in which they perform some
work for their employers, the FLSA does not provide a statutory
basis for the public policy upon which plaintiff relies to
support his wrongful discharge claim in Count B . And, because
plaintiff does not attempt to suggest a nonstatutory basis for
that public policy, Count B must necessarily be dismissed for
failure to identify a public policy that encouraged him to insist
on full payment of his civilian salary while on military duty.
Count C
In Count C , plaintiff asserts a claim for wrongful
termination, saying he was fired because he refused to misstate
the nature of the work he did for Verizon while on active
military duty, and because he insisted upon payment for that
work. Defendant moves to dismiss on grounds that plaintiff has
failed to identify any public policy sufficient to support a
wrongful discharge claim, and that even if he had identified an
adequate public policy, Count C is barred by virtue of the
comprehensive remedial schemes available under USERRA and the
FLSA.
16 To the extent Count C is based upon plaintiff’s alleged
insistence on being paid salary he was due, that claim is
subsumed in Count B and the analysis set forth above applies
equally to Count C . To the extent Count C is based upon
plaintiff’s alleged “refus[al] to misstate the nature of the work
he performed for Verizon while on active military duty” (Compl. ¶
6 8 ) , defendant is entitled to dismissal. Nowhere in his
complaint does plaintiff identify any instance in which he was
asked to misstate anything to anyone, much less that he refused
to do s o . Defendant makes that point in its motion to dismiss,
and it is persuasive.
Plaintiff counters with an argument that is difficult to
paraphrase and s o , is set out in full:
Reading plaintiff’s Count C and giving him the benefit of all reasonable inferences related thereto, the Court can assume that plaintiff’s claim is as follows. Major Slater was asked to work for Verizon while he was on active military duty because his work group was understaffed. Major Slater refused to work for Verizon in secret, but instead insisted that he work openly and be paid for his work. Later, Major Slater’s direct superior, Bonanno, disclaimed knowledge that Slater was being paid. Major Slater, who was the subject of an investigation, refused to disclaim that he was paid or that he worked without permission. In other words, Major Slater acted truthfully in working,
17 demanding that he be paid, and in asserting that he worked with permission and for pay during the investigation. He was then fired for not filing a military leave form and for collecting his Verizon salary while on active duty. Plaintiff’s claim assumes that he would not have been fired had his statements been believed by Verizon. Verizon’s bad faith is established by Bonanno’s failure to support Slater when Slater had Bonanno’s direct permission to work and be paid. The act that triggered the termination was Slater’s telling the investigators truthfully what he had done.
(Pl.’s Mem. of Law at 16.)
Whatever else plaintiff may be asserting in his memorandum
of law, he sheds no light on the essential claim in Count C , that
he was terminated because he refused to misstate the nature of
the work he did for Verizon while on military duty. Plaintiff
does not indicate when (or even that) he was asked to make a
false statement. In the passage quoted above, plaintiff says he
refused to work in secret, but not that he was ever asked to do
so. And at the end of the passage, he claims he was terminated
for telling the truth to investigators, but does not claim that
he was ever asked, by anyone, to tell investigators anything
other than the truth. Thus, plaintiff has failed to allege facts
sufficient to support an assertion that he was terminated for
18 refusing to misrepresent the truth, either at the time of his
military service or during the course of the investigation of his
having worked for Verizon while on active military duty.
What plaintiff does appear to argue is that he was
terminated for telling the truth when questioned by Verizon
investigators. But, based upon the facts alleged, it would be
more accurate to say that plaintiff told the truth and was then
terminated - not so much for telling the truth, but because the
truth justified his discharge in the eyes of his employer.
Consider the following scenario. An employee steals from his
employer. The employer investigates. The employee truthfully
admits his theft, and is terminated. The employee has been
terminated for stealing, not for “telling the truth” to
investigators. So it is in this case; plaintiff has failed to
allege any facts to support a claim that he was terminated for
“telling the truth,” but only facts supporting a conclusion that
he was terminated for collecting his full Verizon salary while on
active military duty.
19 Count D
In Count D, plaintiff asserts a claim for wrongful
termination, based upon an allegation that he was discharged as a
result of an unfair investigation. Defendant moves to dismiss on
grounds that plaintiff has failed to identify a public policy
adequate to support his claim.
“Inquiry into the public policy component must focus on the
acts of the employee and their relationship to public policy, not
on the mere articulation of a public policy by the employee.”
Frechette v . Wal-Mart Stores, Inc., 925 F. Supp. 9 5 , 98 (D.N.H.
1995) (citation omitted). Here, Count D alleges no conduct by
plaintiff, favored by public policy, that led to his dismissal by
Verizon. To the contrary, Count D focuses entirely upon
Verizon’s alleged malfeasance in the investigation it conducted
into plaintiff’s activities. Accordingly, plaintiff has failed
to state a claim on which relief can be granted.
Count E
Defendant moves to dismiss Count E , plaintiff’s RSA 110-C
claim, on grounds that plaintiff has failed to exhaust his
20 administrative remedies. Defendant, however, is entitled to
dismissal for a different and more fundamental reason. Plaintiff
has not alleged – and could not allege in good faith – that he
was called to active duty by the state, rather than by the
federal government, which is a necessary prerequisite to his
having any rights under RSA 110-C. As the statute expressly
provides, “[i]t is the intention of this section to eliminate the
differences in benefits, rights, and protections in employment
between individuals called to active duty by the federal
government and those called to active duty by the state.” RSA
110-C:1, I . As plaintiff has not alleged that he was called to
active duty by the state (and likely was n o t ) , he has no
reemployment rights under RSA 110-C. Count E is dismissed.
Count G
In Count G, plaintiff asserts that Verizon violated his
rights under the Fair Labor Standards Act by discharging him in
retaliation for asserting, in good faith, his right under the
FLSA to be paid his full salary for each pay period during which
he performed any work for Verizon. Defendant moves to dismiss on
grounds that: (1) generalized and/or informal complaints about
21 wages cannot give rise to retaliation claims under the FLSA; and
(2) too much time elapsed between plaintiff’s assertion of his
right to be paid and his termination to support an inference of
retaliation.
The anti-retaliation provision of the FLSA provides as
follows:
[I]t shall be unlawful for any person–
to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding . . .
29 U.S.C. § 215(a)(3). “The elements of a retaliation claim
under the FLSA require, at a minimum, a showing that (1) the
plaintiff engaged in a statutorily protected activity, and (2)
his employer thereafter subjected him to an adverse employment
action (3) as a reprisal for having engaged in protected
activity.” Claudio-Gotay v . Becton Dickinson Caribe, Ltd., 375
F.3d 9 9 , 102 (1st Cir. 2004) (citing Blackie v . Maine, 75 F.3d
716, 722 (1st Cir. 1996)). “[T]he assertion of statutory rights
22 . . . by taking some action adverse to the company . . . that is
the hallmark of protected activity under § 215(a)(3).” Claudio-
Gotay, 375 F.3d at 102 (quoting McKenzie v . Renberg’s Inc., 94
F.3d 1478, 1486 (10th Cir. 1996); citing EEOC v . HBE Corp., 135
F.3d 543, 544 (8th Cir. 1998)).
Because the right plaintiff alleges he asserted – the right
to be paid his full salary for each pay period during which he
performed any work for Verizon – is not a right guaranteed under
the FLSA, termination in retaliation for asserting that “right”
cannot constitute a violation of the FLSA. That i s , plaintiff
asserted a “right” of his own invention, not a statutory right
granted him under the FLSA. Accordingly, he has failed to state
a valid retaliation claim under 29 U.S.C. § 215(a)(3).
However, even if the FLSA did extend the right on which
Count G is based, defendant would still be entitled to dismissal.
Plaintiff says that he “asserted his rights to his full salary in
good faith” (Compl. ¶ 87) and that he “was terminated as a result
of his good faith assertion of his rights under the Fair Labor
Standards Act” (Compl. ¶ 8 8 ) . Nowhere does the complaint offer
23 any additional allegations as to when, how, or to whom plaintiff
asserted his rights to be paid his full salary. Moreover, in his
memorandum of law, plaintiff does not argue that he was
terminated because he asserted, prospectively, a right to be paid
his full salary – by all accounts plaintiff had been paid his
full salary long before he asserted any right to collect i t .
Rather, he urges “the Court to infer that plaintiff objected to
his termination for collecting both military and Verizon pay
because he in good faith believed he was entitled to receive both
and had Bonanno’s permission.” (Pl.’s Mem. of Law at 22
(emphasis added).) Given plaintiff’s characterization of his
termination as “effective on the day it was announced to him,”
(Compl. ¶ 7 ) , it appears that plaintiff is alleging that he
asserted his FLSA rights in response to being terminated, not
that he was terminated in response to asserting his FLSA rights.5
While plaintiff alleges that he asserted his right to be paid his
full salary, and argues that he had such a right under the FLSA,
5 According to plaintiff, “there was nothing about which to complain until the investigation was completed and Slater was fired.” (Pl.’s Mem. of Law at 22.) Thus, under plaintiff’s own theory of the case, he never asserted his right to be paid full salary until after he had been terminated, thus undercutting any claim that his termination was in retaliation for asserting that right.
24 he does not allege that he ever informed Verizon that the source
of the right he was attempting to assert was the FLSA. Cf.
Valerio v . Putnam Assocs. Inc., 173 F.3d 3 5 , 38 (1st Cir. 1999)
(quoting plaintiff’s letter to employer which states, inter alia,
“I demand under FLSA that I be reclassified as non-exempt and
paid for all overtime hours worked.”).
Because plaintiff has failed to allege facts sufficient to
support a claim that he was terminated because he asserted his
rights as an employee, and because the right on which Count G is
based does not exist under the FLSA, defendant is entitled to
dismissal of Count G.
Count I
Count I is a defamation claim. Plaintiff alleges that
defendant effectively forced him to re-publish to potential
employers the false and defamatory statements defendant made
regarding its reasons for terminating his employment. Defendant
moves to dismiss on grounds that New Hampshire does not recognize
a cause of action for “forced re-publication” or “compelled self-
defamation.”
25 The New Hampshire Supreme Court has yet to decide whether it
will recognize a cause of action for defamation resulting from
forced re-publication (or compelled self-defamation). Thus, it
is necessary to predict how that court would likely rule. See
Bogosian v . Woloohojian Realty Corp., 323 F.3d 5 5 , 71 (1st Cir.
2003) (citing Nieves ex rel. Nieves v . Univ. of P.R., 7 F.3d 2 7 0 ,
274-75 (1st Cir. 1993)).
Plaintiff concedes that the self-defamation theory has been
adopted by only a minority of the courts that have considered i t .
Moreover, decisions adopting the theory generally pre-date those
that reject i t , evidencing a trend away from recognizing the
theory of forced re-publication. See Cweklinsky v . Mobil Chem.
Co., 297 F.3d 1 5 4 , 159 (2d Cir. 2002); but see Carey v . M t .
Desert Island Hosp., 910 F. Supp. 7 , 11 (D. M e . 1995) (“A growing
number of jurisdictions recognize the theory of compelled self-
publication.) (citations omitted). Illustrating the trend away
from recognizing the self-defamation theory, one of the first
states to adopt i t , Georgia, has since reversed course. See
Sigmon v . Womack, 279 S.E.2d 2 5 4 , 257 (Ga. C t . App. 1981)
26 (overruling Colonial Stores, Inc. v . Barrett, 38 S.E.2d 306 (Ga.
C t . App. 1946)).
Not only does the doctrine represent a minority position, it
has been largely discredited. See Olivieri v . Rodriguez, 122
F.3d 406, 408 (7th Cir. 1997) (Posner, J . ) . Among those
jurisdictions explicitly rejecting the doctrine is Massachusetts,
see White v . Blue Cross & Blue Shield of Mass., Inc., 809 N.E.2d
1034 (Mass. 2004), a state to which the New Hampshire Supreme
Court often turns for guidance when New Hampshire decisional law
is not well-developed, see, e.g., In re Juvenile 2003-195, 150
N.H. 6 4 4 , 652 (2004); Claremont Sch. Dist. v . Governor, 138 N.H.
183, 186 (1993); Chase v . Dorais, 122 N.H. 6 0 0 , 602 (1982). The
doctrine has also been rejected by the Restatement (Second) of
Torts, see White, 809 N.E.2d at 1036, which the New Hampshire
Supreme Court often recognizes as persuasive, see, e.g., Remsburg
v . Docusearch, Inc., 149 N.H. 1 4 8 , 158 (2003); Buckingham v . R.J.
Reynolds Tobacco Co., 142 N.H. 8 2 2 , 829 (1998).
The signposts seem sufficiently clear; if the New Hampshire
Supreme Court were presented with the question, it would decline
27 to adopt the self-defamation theory on which Count I is based.
Accordingly, plaintiff has failed to state a claim on which
relief can be granted.
Conclusion
For the reasons given, defendant’s motion to dismiss
(document n o . 7 ) is granted in part (Counts B , C , D, E , G, and I
are dismissed), and denied in part (Count A is not dismissed).
SO ORDERED.
Steven J. McAuliffe Jnited States District Judge
March 3, 2005
cc: Andru H. Volinsky, Esq. Brian H. Lamkin, Esq. Daniel P. Schwarz, Esq. Timothy P. Van Dyck, Esq.