Fernandes v . TPD, Inc. CV-99-330-JD 01/07/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Carla L. Fernandes
v. Civil N o . 99-330-JD
Opinion N o . 2000 DNH 007
TPD, Inc. d/b/a/ Lou’s
Restaurant, et a l .
O R D E R
Carla Fernandes is a former employee of Lou’s Restaurant in
Hanover, New Hampshire. Fernandes brought suit against TPD,
Inc., doing business as Lou’s Restaurant (“TPD”), Toby and Pattie
Fried, the owners of Lou’s Restaurant, and Maurice Bergeron, who
was Fernandes’s supervisor when she worked at the restaurant.
Fernandes alleges claims of sexual harassment, violation of New
Hampshire’s Law Against Discrimination, and intentional and
negligent infliction of emotional distress against all
defendants. She also brought a wrongful discharge claim against
TPD and the Frieds. Defendants TPD and the Frieds (document n o .
5 ) and defendant Bergeron (document n o . 8 ) move to dismiss all
claims against them pursuant to Federal Rule of Civil Procedure
12(b)(6). Fernandes objects except as to her claims brought
under New Hampshire’s Law Against Discrimination.
Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is one of 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. 232, 236 (1974). In reviewing the sufficiency
of a complaint, the court accepts “the factual averments
contained in the complaint as true, indulging every reasonable
inference helpful to the plaintiff’s cause.” Garita Hotel Ltd.
Partnership v . Ponce Fed. Bank,
958 F.2d 1 5 , 17 (1st Cir. 1992).
In cases involving an alleged violation of a civil right, the
court requires “plaintiffs to outline facts sufficient to convey
specific instances of unlawful discrimination.” Dartmouth Review
v . Dartmouth College,
889 F.2d 1 3 , 16 (1st Cir. 1989). Applying
this standard, the court will grant a motion to dismiss “‘only if
it clearly appears, according to the facts alleged, that the
plaintiff cannot recover on any viable theory.’” Garita Hotel
Ltd. Partnership, 958 F.2d at 17 (quoting Correa-Martinez v .
Arrillaga-Belendez,
903 F.2d 4 9 , 52 (1st Cir. 1990)).
Background
Fernandes began working as an assistant chef at Lou’s
Restaurant in August of 1997. Her duties were primarily to
2
assist the defendant Bergeron, the head chef, and to substitute
for Bergeron in his absence. Bergeron made comments to Fernandes
and other restaurant employees that Fernandes found offensive.
Bergeron’s comments to Fernandes included calling her a “hairy
beaver,” which Fernandes interpreted as a reference to sexual
organs, suggesting that Fernandes go home to “spread her legs for
the old man,” and asking if she ever gave her husband a “blow
job.” Fernandes claims that Bergeron made comments like these,
if not these specific comments, on a daily basis. She also
complains that he made similar offensive comments to other
employees in front of Fernandes.
Fernandes complained more than once to Bergeron about his
behavior and warned him that he and the restaurant could be sued
for sexual harassment. On at least one of these occasions,
Bergeron responded by simulating masturbation. Fernandes claims
that the defendants Toby and Pattie Fried, who owned Lou’s, were
aware of Bergeron’s conduct.
At the restaurant’s holiday party in 1997, Fernandes was
given a container marked “penis butter” and another marked “boob
lube.” Fernandes implies that the Frieds orchestrated this
event, although she presents no specific allegations of their
involvement in giving her these gifts. She does allege that the
Frieds arranged for another employee to receive a “fake penis”
3
and that Fernandes observed the employee’s embarrassment.
Fernandes began to suffer psychologically and physically
from the work environment at Lou’s, and these problems began to
adversely affect her relationship with her husband. Lou’s did
not have a policy concerning sexual harassment either in its
handbook or posted anywhere at the restaurant. Before leaving
for vacation in August of 1998, Fernandes indicated to the
defendant Pattie Fried that she wanted Fried to address
Bergeron’s behavior upon Fernandes’s return to work. Shortly
before Fernandes was to return to work, the defendant Toby Fried
called Fernandes and told her that although she was doing a good
job, things were not working out and Bergeron would not change
his behavior. Fried then terminated Fernandes’s employment.
Discussion
I. Sexual Harassment
The defendants move to dismiss Fernandes’s sexual harassment
claim on the grounds that Fernandes filed suit too soon and that
she failed to allege sufficient facts to make out a hostile work
environment. The Frieds and Bergeron also argue that they cannot
be held individually liable for sexual harassment under Title
VII.
4
A. Timeliness of Fernandes’s Lawsuit
Generally, the EEOC issues a right-to-sue notice after 180
days from the filing of the charge with the EEOC. See 29 C.F.R.
§ 1601.28(a)(1). However, by regulation the EEOC may issue an
early right-to-sue notice before the 180-day period has expired
if the agency determines that it will be unable to process the
charge within the 180-day period.1 See
29 C.F.R. §
1601.28(a)(2). The defendants argue that the EEOC’s early right- to-sue regulation violates 42 U.S.C. § 2000e-5(b), which requires
the EEOC to investigate all charges of discrimination, and 42
U.S.C. § 2000e-5(f)(1), which requires the EEOC to issue a right-
1
The regulation reads as follows:
When a person claiming to be aggrieved requests, in
writing, that a notice of right to sue be issued, and
the charge to which the request relates is filed
against a respondent other than a government,
governmental agency or political subdivision, the
Commission may issue such notice . . . at any time
prior to the expiration of 180 days from the date of
filing the charge with the Commission; provided, that
[the proper authority] has determined that it is
probable that the Commission will be unable to complete
its administrative processing of the charge within 180
days from the filing of the charge and has attached a
written certificate to that effect.
29 C.F.R. § 1601.28(a)(2).
5
to-sue notice after 180 days from the date a charge is filed.2
They contend that Fernandes’s Title VII claim should be dismissed
because the EEOC issued a right-to-sue notice and Fernandes filed
suit before the 180-day period expired, in violation of Title
VII. 3
2
The relevant part of § 2000e-5(b) reads as follows:
Whenever a charge is filed by or on behalf of a person
claiming to be aggrieved . . . alleging that an
employer . . . has engaged in an unlawful employment
practice, the Commission . . . shall make an
investigation thereof.
42 U.S.C.A. § 2000e-5(b).
The relevant part of § 2000e-5(f)(1) reads as follows:
If a charge filed with the Commission . . . is
dismissed by the Commission, or if within one hundred
and eighty days from the filing of such charge . . .
the Commission has not filed a civil action . . . or
the Commission has not entered into a conciliation
agreement to which the person aggrieved is a party, the
Commission . . . shall so notify the person aggrieved
and within ninety days after the giving of such notice
a civil action may be brought against the respondent
named in the charge . . . .
42 U.S.C.A. § 2000e-5(f)(1).
3
Fernandes filed her charge with the EEOC on February 2 4 ,
1999. The 180-day period for the EEOC to attempt conciliation
would have ended on or about August 2 4 , 1999. The EEOC issued
Fernandes a right-to-sue notice on May 2 7 , 1999, and Fernandes
6
Fernandes asserts that the EEOC’s regulation permitting it
to issue early right-to-sue notices is valid because it is
consistent with the explicit language and underlying policies of
Title VII. Therefore, she argues, her lawsuit was timely. The
parties acknowledge that the First Circuit has not explicitly
addressed the validity of the EEOC’s early right-to-sue
regulation and that other circuits have disagreed on this issue.
The District of Columbia Circuit has held that the early
right-to-sue regulation is unlawful under Title VII and that
“Title VII complainants must wait 180 days after filing charges
with the EEOC before they may sue in federal court.” Martini v .
Federal Nat’l Mortgage Ass’n, 178 F.3d 1336, 1347 (D.C. Cir.
1999), petition for cert. filed,
68 U.S.L.W. 3368 (U.S. Nov. 2 9 ,
1999) (No. 99-908). The Martini court based its holding in part
on the EEOC’s “express statutory duty” under § 2000e-5(b) to
investigate all charges filed. See id. The court reasoned that
Congress intended for the EEOC to at least attempt to investigate
every charge filed, so the EEOC should not be allowed to abandon
an investigation before 180 days have passed. See id. at 1346-
47. “Allowing private suits within 180 days eases the pressure
on the EEOC to resolve charges informally, thus defeating the
filed her complaint in this court on July 1 9 , 1999.
7
explicit congressional policy favoring EEOC-facilitated
resolution up to the 180th day.” Id. at 1347. Noting that the
issuance of a right-to-sue notice effectively terminates the
investigatory process, the Martini court concluded that Congress
must have intended that the EEOC wait 180 days before issuing a
right-to-sue notice. See id. The court also concluded that the
legislative history of § 2000e-5(f)(1) indicates Congress
intended for complainants to be precluded from filing suit for
180 days. See id. Holding the EEOC’s early right-to-sue
regulation invalid, the court consequently remanded the case for
dismissal.4 See id. at 1348.
In contrast, the Ninth and Eleventh Circuits have upheld the
validity of the EEOC’s early right-to-sue regulation. See Sims
v . Trus Joist MacMillan, 22 F.3d 1059 (11th Cir. 1994); Bryant v .
California Brewers Ass’n,
585 F.2d 421 (9th Cir. 1978), vacated
and remanded on other grounds,
444 U.S. 598 (1980). The Bryant
court relied mainly on the language of Title V I I , noting that
“[n]owhere does the statute prohibit the EEOC from issuing such
notice before the expiration of the 180-day period.” Bryant,
585
F.2d at 425. The court also remarked that it would be a
4
The court noted that the 180-day waiting period is not a
jurisdictional requirement, but nevertheless bars any suit
brought before the 180 days have expired, unless equitable
considerations warrant an exception. See Martini at 1348.
8
“travesty” to require plaintiffs to wait 180 days for a right-to-sue notice when the EEOC’s caseload prohibits it from
investigating every charge. Id. The Sims court likewise
reasoned that the plain language of § 2000e-5(f)(1) does not
prevent the EEOC from issuing an early right-to-sue notice. See
Sims,
22 F.3d at 1062. The Sims court emphasized legislative
history that indicated the purpose of the 180-day rule was to
ensure claimants a prompt remedy, and making a claimant wait 180
days to sue when the EEOC cannot process her charge does not
serve the claimant’s interests, nor does it comport with
Congress’s intent. See
id. Neither the Sims nor the Bryant
court considered the validity of the early right-to-sue
regulation in light of § 2000e-5(b), as did the Martini court.
This court finds Martini unpersuasive. The Martini court
found that Congress unambiguously intended for the 180-day period
to function not just as a deadline for the EEOC to issue a right- to-sue notice, but also as a minimum waiting period within which
the EEOC cannot issue a notice. See Martini, 178 F.3d at 1342
(citing Chevron, U.S.A., Inc. v . Natural Resources Defense
Council,
467 U.S. 837, 842-43 (1984)). 5 However, Congress’s
5
The Martini court followed the Supreme Court’s Chevron
standard for judicial review of an agency’s construction of a
statute. See Martini, 178 F.3d at 1342. Under this standard,
9
intent regarding this matter is far from clear. The plain
statutory language does not reveal Congress’s intent. See
Martini, 178 F.3d at 1342-45. The legislative history shows that
Congress both expressed a preference for discrimination charges
to be resolved informally and intended claimants to have their
complaints resolved quickly. See Figueira v . Black Entertainment
Television, Inc.,
944 F. Supp. 299, 306 (S.D.N.Y. 1996).
Because of the EEOC’s inability to promptly investigate
every charge it receives, these two goals are somewhat
contradictory. Congress struck a balance by ensuring that
claimants must wait no more than 180 days after filing a charge
before proceeding to court. See Sims, 22 F.3d at 1063. The
EEOC’s early right-to-sue regulation, allowing claimants to
proceed before 180 days have passed, furthers Congress’s goal of
avoiding unnecessary delay in resolving disputes. See
id. (“[W]e
do not think Congress intended to force victims of discrimination
to undergo further delay when the [EEOC] has determined such
delay to be unnecessary.” (quoting Rolark v . University of
the court first considers whether Congressional intent is
unambiguous in the plain language of the statute or the
legislative history. See Chevron,
467 U.S. at 842-43. If the
court finds Congress’s intent to be ambiguous, the agency’s
interpretation is entitled to deference and is valid as long as
it is a permissible reading of the statute. See
id. at 843.
10
Chicago Hosps., 688 F. Supp. 4 0 1 , 404 (N.D. Ill. 1988))).
Moreover, the regulation does not interfere with Congress’s
mandate that the EEOC investigate charges any more than the 180-
day deadline does. It merely permits the EEOC to make an earlier
determination that it will not be able to investigate a
particular claim within 180 days. “While it is clear that the
EEOC must investigate, it is not clear that it must spend at
least 180 days to do so.” Berry v . Delta Air Lines, __ F. Supp.
2d __,
1999 WL 1115760, at *2 (N.D. Ill. Dec. 1 , 1999).
Therefore, the EEOC’s early right-to-sue notice regulation does
not appear to contradict Congressional intent, to the extent
Congressional intent can be discerned.
In light of the deference due an administrative agency’s
interpretation of statutes, the court finds the early right-to-sue regulation, 29 C.F.R. § 1601.28(a)(2), to be a permissible
construction of 42 U.S.C. § 2000e-5(f)(1) and therefore valid.
See Chevron,
467 U.S. at 843. The regulation reasonably allows
the EEOC to exercise its expert judgment in determining which
charges are unlikely to be processed within 180 days.6 See
6
The Martini court was concerned that the EEOC could not
have properly assessed the probability of resolving that dispute
within 180 days because the agency issued a right-to-sue notice
only 21 days after the charge was filed. See Martini, 178 F.3d
at 1346. In contrast, the EEOC issued Fernandes a right-to-sue
11
Berry, 1999 WL 1115760, at * 2 ; Figueira,
944 F. Supp. at 306.
“In light of the EEOC’s expertise in administering the statute,
this is a permissible interpretation of its obligations under
Title VII.” Berry,
1999 WL 1115760, at * 2 .
Furthermore, the court “cannot in good conscience interpret
the 180-day requirement to mean that Plaintiff’s file must return
to the EEOC for further inquiry--merely because of a statutory
interpretation that penalizes the Plaintiff for acting in
compliance with Title VII.” Connor v . WTI, 67 F. Supp. 2d 690,
697 (S.D. Tex. 1999). For all of these reasons, the court finds
that Fernandes’s lawsuit is timely.
B. Sufficiency of Title VII Claim
Sexual harassment constitutes unlawful discrimination on the
basis of sex under Title VII. See Meritor Sav. Bank v . Vinson,
477 U.S. 5 7 , 66 (1986); Provencher v . CVS Pharmacy,
145 F.3d 5 ,
13 (1st Cir. 1998). Maintaining a claim of hostile work
environment “requires a showing of severe or pervasive conduct,”
such that it constitutes a change in the terms and conditions of
employment. Burlington Indus., Inc. v . Ellerth,
524 U.S. 742
notice approximately 92 days after receiving her charge,
increasing the likelihood that the EEOC accurately determined the
probability of conciliation.
12
(1998); see also Meritor, 477 U.S. at 6 7 . The phrase “terms and
conditions of employment” is not limited to the meaning of these
words in a contractual sense, and may apply where an abusive
working environment is created. See Faragher v . City of Boca
Raton, 524 U.S. 775, 786 (1998) (citing Oncale v . Sundowner
Offshore Servs., Inc.,
523 U.S. 7 5 , 78 (1998)). The work
environment must be “both objectively and subjectively offensive,
one that a reasonable person would find hostile or abusive, and
one that the victim in fact did perceive to be so.” Faragher,
524 U.S. at 775 (citing Harris v . Forklift Sys., Inc.,
510 U.S.
1 7 , 21-22 (1993)). In deciding whether harassment is actionable
under Title VII, the court must consider the totality of the
circumstances, including the “frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Id. at 787-88 (quoting Harris,
510 U.S. at 2 3 ) ; see also Brown v .
Hot, Sexy and Safer Prods., Inc.,
68 F.3d 525, 540 (1st Cir.
1995) (applying Title VII analysis in Title IX context).
The facts alleged in Fernandes’s complaint outline a work
environment where the terms and conditions of employment were
changed as a result of Bergeron’s conduct. His treatment of
Fernandes and other employees at the restaurant indicates that
13
his behavior pervaded the workplace and altered the entire work
environment. Because Fernandes had to work closely with
Bergeron, she was directly exposed to his behavior every day at
work. Fernandes was subjected to crude comments of an overtly
sexual nature, comments which reasonable people certainly could
consider offensive, and Fernandes alleges that she was seriously
offended by Bergeron’s conduct. Therefore, taking the facts
contained in Fernandes’s complaint as true, the court finds that
Fernandes has alleged sufficient facts to survive a motion to
dismiss.
Furthermore, Fernandes has pled facts in her complaint
pertaining to retaliatory discharge. As the court discusses
below, although Fernandes has pled these facts in the context of
a wrongful discharge claim, Title VII precludes Fernandes from
asserting a common law claim for wrongful discharge. See Smith
v . F.W. Morse & Co., 76 F.3d 413, 429 (1st Cir. 1996).
Therefore, the court analyzes these facts as part of Fernandes’s
claim under Title VII.
To allege a claim of retaliatory discharge under Title VII,
Fernandes must allege specific facts suggesting that “(1) she
engaged in a protected activity as an employee, (2) she was
subsequently discharged from employment, and (3) there was a
causal connection between the protected activity and the
14
discharge.” Hoeppner v . Crotched Mountain Rehabilitation Ctr.,
Inc., 31 F.3d 9, 14 (1st Cir. 1994). Reporting sexual harassment
is a protected activity under Title VII. See
id. (citing Morgan
v . Massachusetts Gen. Hosp.,
901 F.2d 186, 194 (1st Cir.1990)).
Taking the facts in Fernandes’s complaint as true as set forth
earlier in this opinion, and indulging all reasonable inferences
in her favor, the court can infer that Fernandes reported the
sexual harassment she experienced to the defendants and that she
was subsequently discharged as a result of her report.
For these reasons, Fernandes’s allegations satisfy the
minimal pleading requirements to state a Title VII claim of
discrimination based on gender including sexual harassment.
C. Individual Liability
The individual defendants have moved to dismiss Fernandes’s
Title VII claims against them in their individual capacities.
However, Fernandes states that she has not sued any of the
defendants in their individual capacities under Title VII and
that statement will be considered a binding waiver of such
claims, if any exist.
II. New Hampshire’s Law Against Discrimination
Fernandes does not object to dismissal of her claims against
15
all defendants under New Hampshire’s Law Against Discrimination,
see N.H. Rev. S t . Ann. 354-A, because the statute does not
provide a private cause of action. See Preyer v . Dartmouth
College, 968 F. Supp. 2 0 , 26 (D.N.H. 1997). Accordingly, the
court dismisses these claims.
16
III. Negligent Infliction of Emotional Distress
The defendants argue that Fernandes’s claims of infliction
of emotional distress are barred by New Hampshire’s worker’s
compensation statute. See N.H. Rev. S t . Ann. § (“RSA”) 281-A:8.
This court has repeatedly held that this statute precludes an
employee from pursuing common law claims for negligent torts
against her employer. See, e.g., Holland v . Chubb Am. Serv.
Corp., 944 F. Supp. 103, 105 (D.N.H. 1996); Miller v . CBC Cos.,
908 F. Supp. 1054, 1068 (D.N.H. 1995). The statute also
precludes claims against a co-employee for negligent torts. See
Thompson v . Forest,
136 N.H. 215, 219 (1992).
Fernandes argues that the injuries she suffered fall outside
the scope of injuries covered by the worker’s compensation
statute. She contends that sexual harassment is not the type of
injury typically associated with working in a restaurant, that
her employment did not create the risk of harassment, and the
harassment did not take place in the performance of employmentrelated activity. Fernandes bases her argument on the standard
applied in Appeal of Estate of Balamotis, 141 N.H. 456, 458
(1996), a standard first developed in Murphy v . Town of Atkinson,
128 N.H. 6 4 1 , 645-46 (1986). 7 However, this standard applies to
7
To determine whether peripheral or ancillary activities are
within the scope of employment, a plaintiff
17
plaintiffs who are injured “while engaged in peripheral or
ancillary activities, [such as] recreational or social
activities.” Balamotis, 141 N.H. at 458; see also Murphy,
128
N.H. at 645. In contrast, Fernandes sustained the bulk of her
alleged injuries on the employer’s premises, during work hours,
while she was performing her job duties. Although she claims she
received some of her injuries at a party, the party was a
corporate-sponsored holiday party for restaurant employees. The
official nature of a company holiday party makes sexual
harassment at the party a risk created by employment, even if the
party is held off company premises.8 Cf. Appeal of Cooper,
141
N.H. 1 8 4 , 187 (1996) (discussing significance of corporate
sponsorship of peripheral event). Therefore, the court finds
must prove (1) that the injury arose out of employment
by demonstrating that it resulted from a risk created
by the employment; and (2) that the injury arose in the
course of employment by demonstrating that (A) it
occurred within the boundaries of time and space
created by the terms of employment, and (B) that it
occurred in the performance of an activity related to
employment, which may include a personal activity if
reasonably expected and not forbidden, or an activity
of mutual benefit to employer and employee.
Murphy, 128 N.H. at 645-46.
8
It is not clear from the complaint whether the holiday
party took place on the premises of Lou’s Restaurant.
18
Fernandes’s argument unpersuasive.
Fernandes also argues that, as a matter of public policy,
sexual harassment claims should not be subject to the exclusivity
provisions of state worker’s compensation statutes. As this
jurisdiction does not recognize such an exception to New
Hampshire’s worker’s compensation statute, the court rejects this
argument. Therefore, the court dismisses Fernandes’s claims of
negligent infliction of emotional distress.
IV. Intentional Infliction of Emotional Distress
This court has repeatedly and consistently ruled that claims
of intentional tort against an employer are barred by the
exclusivity provision of the New Hampshire worker’s compensation
statute, RSA 281-A:8, I . See, e.g., Holland, 944 F. Supp. at
105; Miller,
908 F. Supp. at 1068. Therefore, Fernandes’s claims
of intentional infliction of emotional distress are barred
against TPD and the Frieds.
However, the statute does allow plaintiffs to proceed with
claims of intentional tort against co-employees. See RSA 281-
A : 8 , I ; Young v . Conductron Corp., 899 F. Supp. 3 9 , 41 (D.N.H.
1995) (citing Thompson,
136 N.H. at 2 1 9 ) . Therefore, RSA 281-A:8
does not preclude Fernandes’s claim of intentional infliction of
emotional distress against Bergeron. Bergeron argues that
19
Fernandes’s allegations fail to state a claim because his conduct
does not rise to the requisite level of outrageousness.
To maintain a claim of intentional infliction of emotional
distress, Fernandes must allege sufficient facts to infer that
Bergeron intentionally or recklessly caused her severe emotional
distress through his extreme and outrageous conduct. See Miller
v . CBC Cos., 908 F. Supp. 1054, 1067 (D.N.H. 1995) (citing
Morancy v . Morancy,
134 N.H. 493, 495-96 (1991)). New Hampshire
law follows the definition of outrageous conduct found in the
Restatement (Second) of Torts. See Godfrey v . Perkin-Elmer
Corp.,
794 F. Supp. 1179, 1188 (D.N.H. 1992); Morancy,
134 N.H.
at 495-96. According to the Restatement, the offending conduct
should be “‘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.’” Godfrey,
794 F. Supp. at 1189 (quoting Restatement
(Second) of Torts § 4 6 , cmt. d (1965)).
Fernandes alleges that she was required to work closely with
Bergeron as his assistant and that Bergeron intentionally abused
this arrangement by subjecting her to sexually offensive,
demeaning and inappropriate comments on a daily basis. See
Duguay v . Androscoggin Valley Hosp., 1996 WL 157191, at *4
(D.N.H. 1996). She asserts that after complaining to Bergeron
20
about his behavior, he only responded with more offensive
conduct. Bergeron’s persistent statements exceed the “mere
indignities, annoyances, or petty oppressions that one may expect
to encounter in one’s daily life.” Godfrey, 794 F. Supp. at
1189. Such comments made “regularly and persistently . . . may
also indicate the ‘abuse by the defendant of some relation or
position which gives him actual or apparent power to damage the
plaintiff’s interests.’” Miller,
908 F. Supp. at 1068 (quoting
W . Page Keeton et a l . , Prosser and Keeton on Torts § 1 2 , at 61
(5th ed. 1984)). The court rules that Fernandes’s allegations
are sufficient to support a claim for intentional infliction of
emotional distress.
V. Wrongful Discharge
Finally, Fernandes attempts to seek redress for her
retaliatory discharge under the common law remedy for wrongful
discharge. A plaintiff may not seek a common law remedy for
wrongful termination under New Hampshire law where the same claim
is addressed by a statutory cause of action such as Title VII.
See Smith v . F.W. Morse & Co., 76 F.3d 413, 429 (1st Cir. 1996)
(discussing Wenners v . Great State Beverages,
140 N.H. 100, 103
(1995)); Cooper v . Thomson Newspapers, Inc.,
6 F. Supp. 2d 109,
115 (D.N.H. 1998) (same). Therefore, the court dismisses
21
Fernandes’s common law claim of wrongful discharge. Since all
other grounds for a wrongful termination claim in this case are
precluded, the court construes the claim as one for retaliatory
discharge in violation of Title V I I , as discussed above.
Conclusion
For the foregoing reasons, the motion of defendants TPD and
Toby and Pattie Fried to dismiss (document n o . 5 ) is denied as to
the Title VII claim (Count I ) , but is granted as to the claim
under New Hampshire’s Law Against Discrimination (Count II) and
the claims of intentional infliction of emotional distress (Count
I I I ) , negligent infliction of emotional distress (Count I V ) , and
wrongful discharge (Count V ) . Defendant Bergeron’s motion to
dismiss (document n o . 8 ) is denied as to the Title VII claim
(Count I ) and the claim for intentional infliction of emotional
distress (Count I I I ) , but is granted as to the claim under New
Hampshire’s Law Against Discrimination (Count II) and the claim
for negligent infliction of emotional distress (Count I V ) . Any
claims that may exist under Title VII against the defendants
individually are deemed waived.
SO ORDERED.
Joseph A . DiClerico, J r .
District Judge
January 7 , 2000
c c : Karen J. Borgstrom, Esquire
David W . Johnston, Esquire
Robin C . Curtiss, Esquire
22
