True v. DJQ Enterprises, et al.

2011 DNH 033

• Court: District Court, D. New Hampshire
• Decided: March 2, 2011
• Docket: 09-CV-439-SM
• Status: Published

Opinion

True v . DJQ Enterprises, et a l . 09-CV-439-SM 3/2/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Winthrop True, Plaintiff

v. Case N o . 09-cv-439-SM Opinion N o . 2011 DNH 033 DJQ Enterprises, Inc., d/b/a Quirk Chevrolet Buick N H , Defendant

O R D E R

Plaintiff, Winthrop True, sues his former employer, DJQ

Enterprises, Inc. (“DJQ”). Winthrop says that DJQ retaliated

against him because he asserted legitimate wage claims and

exercised his rights under the Fair Labor Standard Act (“FLSA”),

29 U.S.C. § 201 et seq. At issue are two causes of action set

out in the complaint that arise from the same operative facts —

one a common law claim for wrongful discharge (Count I ) , the

other a claim for relief under the FLSA (Count I I ) .

Defendant moves for summary judgment on plaintiff’s common

law wrongful discharge claim, arguing that, as a matter of law,

it cannot coexist with his FLSA claim, since it is the FLSA that

supplies the necessary “public policy” element of the wrongful

discharge claim, yet the FLSA also provides a defined statutory

remedy for the public policy transgression alleged to have

occurred. See Smith v . F.W. Morse & Co., 76 F.3d 413, 428-29 (1st Cir. 1996) (determining that New Hampshire’s common law does

not permit a wrongful discharge cause of action where the public

policy asserted to have been violated is derived from a statute

that itself provides a right of action for that same violation).

Smith’s broad interpretation of New Hampshire’s common law

is now suspect, given the New Hampshire Supreme Court’s post-

Smith decisions in Bliss v . Stow Mills, Inc., 146 N.H. 550

(2001), and Karch v . BayBank FSB, 147 N.H. 525 (2002). See

Parker B . Potter, Jr., Revisiting the Scrap Heap: the Decline and

Fall of Smith v . F.W. Morse & Co., 4 Pierce L. Rev. 481 (2006).

In each case the state supreme court determined that a common law

wrongful discharge claim could be maintained, notwithstanding

that a statute (a federal statute in Stow Mills; a state statute

in Karch) provided both the public policy element of the common

law claim and a remedy for the policy’s transgression. The

critical issue in such cases is whether the state legislature

intended to replace the common law wrongful discharge cause of

action with a statutory remedy. O r , with respect to federal

statutes, the question is one of preemption — whether Congress

intended to preempt state law claims for wrongful discharge based

upon the public policy vindicated in the federal statute. See

Stow Mills, Inc., 146 N.H at 555.

2 Since Stow Mills and Karch, federal courts have generally

considered Smith’s holding to have been clarified by the New

Hampshire Supreme Court. Under current state law, absent a

showing that either New Hampshire’s legislature intended to

substitute a statutory remedy for the common law wrongful

discharge cause of action, or that the Congress intended to

preempt the state’s wrongful discharge cause of action by

enacting a specific statutory remedy, both the common law and

statutory causes of action may be pursued simultaneously. See

Weeks v . Wal-Mart Stores, Inc., 2010 WL 3703254 (D.N.H. 2010);

Glynn v . EDO Corp., 536 F. Supp. 2d 595 (D. Md. 2008); Slater v .

Verizon Communications, Inc., 2005 WL 488676 (D.N.H. 2005).

Defendant’s position — that the mere existence of the FLSA’s

statutory remedies for retaliation in wage claim cases is enough

to support summary judgment on plaintiff’s wrongful discharge

claim — is no longer viable. And, as in Weeks, defendant has not

made a serious effort to develop the federal preemption analysis

now required to support their claim to judgment as a matter of

law on Count I (likely for good reasons). Accordingly, plaintiff

may pursue his common law wrongful discharge claim along with his

FLSA claim.

3 Conclusion

Defendant’s motion for summary judgment (document n o . 8 ) is

denied.

SO ORDERED.

McAuliffe ''Chief Judge

March 2 , 2011

cc: Debra W . Ford, Esq. Francis X . Quinn, Jr., Esq.