Toomire v. Town & Country Janitorial

2000 DNH 055

Opinion

Toomire v. Town & Country Janitorial CV-01-24-B 03/30/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Toomire

v. Civil No. 01-24-B Opinion N o . 2001DNH067

Town & Country Janitorial Services, Inc., et al.

O R D E R

I respond to defendants’ motion for judgment on the pleadings as follows:

1. Plaintiff’s Title VII claims against Paul Thompson and Daniel Thompson (Counts I and II) must be dismissed because a Title VII claim cannot be maintained against a co-employee. See March v . Technical Employment Servs., Inc., 2000 DNH 055, 7-8. A different result is not warranted here merely because Daniel Thompson is the president and a shareholder of the employer.

2. Plaintiff’s claims based on N.H. Rev. Stat. Ann. § 354-A (Counts III and IV) must be dismissed because this statute does not provide a private cause of action. See Bergstrom v . Univ. of New Hampshire, 943 F. Supp. 1 3 0 , 132 n.3 (D.N.H. 1996).

3. Plaintiff’s wrongful discharge claim (Count V ) must be

dismissed because plaintiff cannot maintain a wrongful discharge claim for conduct that is actionable under Title VII. See Smith v . F.W. Morse & Co., 76 F.3d 413, 429 (1st Cir. 1996).

4. Defendant Town & Country challenges plaintiff’s breach of contract (Count VI) and unpaid wages (Count VII) claims. Town & Country’s challenges to those claims cannot be resolved by reference to the pleadings. Accordingly, defendant’s motion to dismiss these claims is denied without prejudice.

In summary, Counts I and II are dismissed as to Paul Thompson and Daniel Thompson. Counts I I I , IV, and V are dismissed in their entirety. Defendant’s motion to dismiss Counts VI and VII is denied without prejudice.

SO ORDERED.

Paul Barbadoro

Chief Judge

March 3 0 , 2001

cc: Jennifer A . Lemire, Esq.

Christopher W . Keenan, Esq.

Martha Van Oot, Esq.