Sheeler v . Select Energy CV-03-059-JD 07/28/03
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
William J. Sheeler
v. Civil N o . 03-59-JD
Opinion N o . 2003 DNH 132
Select Energy and NEChoice, LLC
O R D E R
The plaintiff, William J. Sheeler, brings claims against
Select Energy and NEChoice, LLC., arising from the circumstances
of Sheeler’s discharge from employment with Select Energy.
Select Energy moves to dismiss Sheeler’s claim in Count V I I ,
brought under New Hampshire Revised Statutes Annotated (“RSA”)
chapter 339-E. NEChoice moves to dismiss all of the claims
brought against i t . Sheeler objects to both motions.
Standard of Review
In considering a motion to dismiss, pursuant to Federal Rule
of Civil Procedure 12(b)(6), the court accepts the facts alleged
in the complaint as true and draws all reasonable inferences in
favor of the plaintiff. Calderon-Ortiz v . Laboy-Alvarado, 300
F.3d 6 0 , 63 (1st Cir. 2002). The court must determine whether
the complaint, construed in the proper light, “alleges facts
sufficient to make out a cognizable claim.” Carroll v . Xerox
Corp.,
294 F.3d 2 3 1 , 241 (1st Cir. 2002). All that is required
is a short and plain statement of the claim. See Gorski v . N.H.
Dep’t of Corr.,
290 F.3d 466, 473 (1st Cir. 2002) (citing
Swierkiewicz v . Sorema N.A.,
534 U.S. 506 (2002)).
Background
William Sheeler was employed by Select Energy as an account
executive from November of 1997 through December of 1999. His
job included retail sales and marketing of deregulated electric
and gas energy products and energy conservation products. Select
Energy provided Sheeler and other account executives with the
“Select Energy Retail Sales Plan - 1999" (“Compensation Plan”).
Under the terms of the Compensation Plan, Select Energy agreed to
pay wages and commissions. Sheeler received a base salary and
commissions based on his sales. The Plan was an incentive to
account executives to vigorously pursue contracts to benefit
Select Energy.
Select Energy entered one or two service contracts with
NEChoice and the Massachusetts Municipal Association. Those
contracts gave NEChoice the right to approve or disapprove any
sale, offer to sell, or contract for retail electricity or energy
services by Select Energy to any municipal entity. In February
of 1999, Sheeler was directed by Select Energy to pursue an
opportunity with the Cape Light Compact to negotiate a contract
for energy services. The Cape Light Compact was a group of
2
twenty-one towns and two counties established in 1997 to secure
the lowest cost energy supply for metered customers in its member
towns and counties.
In response to Sheeler’s efforts, the Cape Light Compact
submitted a “Request for Proposal” to Select Energy. At a
preliminary meeting in February of 1997, the Cape Light Compact
indicated that it did not want to do business with NEChoice and
did not want NEChoice to participate in the bid process with
Select Energy. The participants at the meeting agreed that
Select Energy would proceed directly with the Cape Light Compact
and that NEChoice would proceed, if at all, with its own bid
process. A representative of NEChoice was contacted by telephone
and was informed of the arrangement between Select Energy and the
Cape Light Compact. Sheeler asked that the agreement that
NEChoice and Select Energy would proceed independently in the bid
process be submitted in writing to NEChoice and assumed that was
done. The Cape Light Compact required Select Energy and NEChoice
to sign disclosure agreements that there would be no collusion in
the submission of bids.
Sheeler, on behalf of Select Energy, and the Cape Light
Compact entered into negotiations. Sheeler found that the Cape
Light Compact was negotiating exclusively with Select Energy and
was excluding NEChoice. Sheeler and the Select Energy
negotiation team considered NEChoice as a competitor.
3
Nevertheless, a Select Energy supervisor told Sheeler that all of
Select Energy’s information for the bid process was to be shared
with NEChoice.
The negotiations resulted in a revised proposal in April of
1999. The Cape Light Compact requested a rebid from Select
Energy, which it provided in mid-May. NEChoice did not request
or participate in the rebid process and was upset that Select
Energy had done so without notifying NEChoice. The Select Energy
proposal represented approximately $270,000,000.00 in prospective
sales, $9,000,000.00 in profit to Select Energy, and
$1,200,000.00 as a sales commission for Sheeler.
On May 1 9 , 1999, NEChoice asserted a right to control any
bid submitted by Select Energy, under the agreement between them,
and notified both the Cape Light Compact and Select Energy that
it would prohibit the agreement under Select Energy’s bid.
NEChoice’s actions delayed execution and implementation of Select
Energy’s agreement with the Cape Light Compact. Discussions took
place between May and September of 1999 as to NEChoice’s asserted
right to derail the agreement between Select Energy and the Cape
Light Compact. The deadlines in that agreement were in danger of
expiring.
Sheeler learned in late September of 1999 that the Cape
Light Compact had hired counsel who sent a letter threatening
suit against both Select Energy and NEChoice. In the letter,
4
counsel for the Cape Light Compact represented that Sheeler
stated during July that it was too bad that NEChoice interfered
with the agreement between the Compact and Select Energy. A
meeting was held in late September, and NEChoice and Select
Energy decided to join in their defense against the claims raised
by the Cape Light Compact. After the meeting, Sheeler was
excluded from any further participation in the matter.
On November 5 , 1999, Sheeler received notice that his
employment with Select Energy would be terminated on or about
December 2 6 , 1999. Sheeler was terminated on December 3 1 , 1999.
Sheeler believed that all contract negotiations with the Cape
Light Compact had ended. All sales personnel, except one, who
were involved in the proposed Cape Light Compact agreement were
also discharged. On March 7 , 2000, the Cape Light Compact and
Select Energy announced that a contract had been negotiated and
signed. Media reports of the agreement indicated that the terms
were the same as those negotiated by Sheeler.
Sheeler brought suit in state court on December 2 3 , 2002.
The defendants removed the action to this court. Sheeler filed
an amended complaint on June 1 0 , 2003.
Discussion
Sheeler alleges claims of breach of contract, wrongful
discharge, civil conspiracy, and violation of RSA chapter 275 and
5
chapter 339-E against Select Energy. He alleges claims of
tortious interference with contract and civil conspiracy against
NEChoice. Select Energy moves to dismiss the claim based on RSA
chapter 339-E. NEChoice moves to dismiss all claims against it. 1
I. Select Energy’s Motion to Dismiss
Select Energy contends that the claim under RSA Chapter 339-
E , Count V I I , is not actionable because Sheeler was an employee.
Sheeler acknowledges that RSA chapter 339-E provides a cause of
action for a “sales representative,” but not for an employee.
See RSA 339-E:1, III; John A . Cookson C o . v . N.H. Ball Bearings,
Inc., 147 N.H. 3 5 2 , 357 (2001). He also acknowledges that he
alleges that he was an employee of Select Energy. He argues,
1
NEChoice suggests in a footnote in its motion to dismiss
that either Massachusetts or New Hampshire law might apply in
this case but asserts that Sheeler’s claims would fail under the
law of either state. Generally, a federal court sitting in
diversity jurisdiction applies the substantive law of the forum
state and federal procedural rules. See 28 U.S.C.A. ' 2071; Erie
R.R. C o . v . Tompkins, 304 U.S. 6 4 , 78 (1938). As a result, the
court applies the choice-of-law principles of the forum state to
determine which state’s substantive law to apply. See Klaxon C o .
v . Stentor Elec. Mfg. Co.,
313 U.S. 4 8 7 , 496-97 (1941). Under
New Hampshire choice-of-law principles, when more than one state
may have an interest in the suit and the choice involves
substantive law, the court must first decide whether New
Hampshire law actually conflicts with the laws of the other
interested states. See Keeton v . Hustler Magazine, Inc.,
131
N.H. 6, 13 (1988). Since it appears that no actual conflict
exists as to the law of the interested states, no further
analysis is required, and New Hampshire substantive law applies.
6
however, that he pled the claim in the alternative and that it
should not be dismissed before discovery on the issue of his
employment status.
A sales representative, for purposes of RSA chapter 339-E,
is “an individual other than an employee, who contracts with a
principal to solicit orders and who is compensated, in whole or
in part, by commission.” RSA 339-E:1, III. A principal is “a
person who manufactures, produces, imports or distributes a
product for sale to customers who purchase the product for
resale; uses a sales representative to solicit orders for such
product; and compensates individuals who solicit orders, in whole
or in part, by commission.” RSA 339-E:1, I I . Commission in this
context is “compensation paid a sales representative by a
principal, the rate of which is expressed as a percentage of the
dollar amount of orders or sales of the principal’s product.”
RSA 339-E:1, I .
Sheeler repeatedly alleges that he was an employee of Select
Energy. He also alleges, however, that he was a sales
representative. He states that his job was to sell and market
Select Energy’s products and that he was compensated with wages
and commission under the Compensation Plan. He does not allege
the specific terms applicable to the commission.
A plaintiff is permitted to allege claims in the
alternative, even if the allegations are inconsistent or
7
contradictory. See Fed. R. Civ. P. 8(e)(2); Rodriguez-Suris v .
Montesinos, 123 F.3d 1 0 , 20 (1st Cir. 1997). Therefore, the
inconsistencies in Sheeler’s complaint as to his employment
status are not dispositive. He has alleged the minimal facts
necessary to state a claim as a sales representative, as defined
in RSA 339-E:1.
II. NEChoice’s Motion to Dismiss
NEChoice contends that Sheeler’s claim against it for
tortious interference with contract and civil conspiracy to
tortiously interfere with contract are barred by the statute of
limitations. NEChoice also contends that Sheeler does not state
a tortious interference claim. NEChoice challenges Sheeler’s
claim of conspiracy to effect wrongful discharge on the grounds
that Sheeler was not an employee of NEChoice, that he alleges no
facts to support a conspiracy theory, that the claim is untimely,
and that the underlying wrongful discharge claim is without
merit.
A. Tortious Interference with Contract
In his complaint, Sheeler alleges that NEChoice tortiously
interfered with the contractual relationship between the Cape
Light Compact and Select Energy and his own contractual
relationship for employment and compensation with Select Energy.
8
To state a claim of tortious interference with a contractual
relationship, a plaintiff must allege facts showing “that the
plaintiff had a contractual relationship with a third party; that
the defendants knew of the contractual relationship between the
plaintiff and the third party; and that the defendants wrongfully
induced the third party to breach his agreement with the
plaintiff.” Barrows v . Boles, 141 N.H. 3 8 2 , 392-93 (1996).
NEChoice argues that the claim is time-barred and fails to state
a claim.2
1. The Select Energy-Cape Light Compact relationship.
To the extent Sheeler asserts a tortious interference with
contract claim based on NEChoice’s interference with the
agreement he negotiated between Select Energy and the Cape Light
Compact, he has not stated a claim. A tortious interference
claim must be premised on the plaintiff’s contractual
relationship with a third party. See id. Because Sheeler was
not a party to the agreement between Select Energy and the Cape
Light Compact, NEChoice did not interfere, tortiously or
2
NEChoice contends that it did not wrongfully interfere in
the Select Energy-Cape Light Compact agreement because it had a
pre-existing contractual right with Select Energy to approve such
an agreement. See Roberts v . Gen. Motors Corp., 138
1 N.H. 5 3 2 ,
541 (1994) Based on Sheeler’s allegations, taken in the proper
light for a motion to dismiss, however, the validity of
NEChoice’s asserted right is disputed.
9
otherwise, with a contractual relationship between Sheeler and a
third party. Therefore, that claim is dismissed.
2. The Compensation Plan.
Sheeler also alleges that NEChoice tortiously interfered
with his contractual relationship with Select Energy under the
Compensation Plan and other wage and compensation agreements.
The employment relationship part of Sheeler’s tortious
interference claim is not clearly articulated in either the
amended complaint or in his objection to the motion to dismiss.
As to that part of the claim, Sheeler alleges that NEChoice knew
of Sheeler’s compensation agreement with Select Energy and knew
that he would receive substantial “incentive compensation” from
the agreement he negotiated between Select Energy and the Cape
Light Compact.
Sheeler does not allege in that count that NEChoice induced
Select Energy to discharge him or to fail to pay him compensation
due under the Compensation Plan.3 Instead, Sheeler’s claim
appears to be that NEChoice’s alleged wrongful interference with
the Select Energy-Cape Light Compact deal was intended to deny
3
Sheeler alleges in Count V , civil conspiracy to effect
wrongful discharge, that NEChoice assisted Select Energy in his
discharge to avoid paying Sheeler the commission that would be
due on the agreement he negotiated between Select Energy and the
Cape Light Compact.
10
Sheeler his expected “incentive compensation” for his efforts in
securing that agreement.4
NEChoice did not specifically address the Compensation Plan
part of Sheeler’s tortious interference claim in its motion to
dismiss. In its reply, NEChoice contends that the claim is time-barred and that its actions were not wrongful because they were
based on its pre-existing contract right, as it argued more
generally in the motion to dismiss. NEChoice contends that
Sheeler alleges that NEChoice’s interference injured him when
NEChoice asserted an approval right in May of 1999, when the
contract negotiations between Select Energy and the Cape Light
Compact broke down in September of 1999, o r , at the latest, in
November of 1999 when Select Energy notified Sheeler that he
would be discharged in December. Sheeler argues that because he
was excluded from the negotiations among Select Energy, the Cape
Light Compact, and NEChoice after September of 1999, he did not
discover the ongoing negotiations that lead to an agreement in
March of 2000.
The parties agree that Sheeler’s tortious interference claim
is governed by RSA 508:4, I , which provides that actions “may be
brought only within 3 years of the act or omission complained
4
In Count V , however, Sheeler alleges that he was entitled
to receive “incentive compensation” under the Compensation Plan
for his part in negotiating the Select Energy-Cape Light Compact
agreement even though it was never signed.
11
of.” Because the statute of limitations is an affirmative
defense, the defendant bears the burden of showing that it
applies. Donnelly v . Eastman, 2003 WL 21488187, at * 2 (N.H.
June 3 0 , 2003). Sheeler’s writ was filed in state court on
December 2 3 , 2002, making December 2 3 , 1999, the limitations
deadline. See
id. (describing commencement of action under New
Hampshire l a w ) .
The statute also provides a discovery rule exception:
that when the injury and its causal relationship to the
act or omission were not discovered and could not
reasonably have been discovered at the time of the act
or omission, the action shall be commenced within 3
years of the time the plaintiff discovers, or in the
exercise of reasonable diligence should have
discovered, the injury and its causal relationship to
the act or omission complained o f .
RSA 508:4, I . The discovery rule, however, tolls the
commencement of the limitation period only until the plaintiff is
apprised of a violation of his rights and a resulting injury but
not until the plaintiff discovers the full extent of his
injuries. See Rowe v . John Deere, 130 N.H. 1 8 , 22-23 (1987).
The plaintiff bears the burden of showing that the discovery rule
exception applies. See Dobe v . Comm’r, N.H. Dep’t of Health &
Human Servs.,
147 N.H. 4 5 8 , 461 (2002).
Based on Sheeler’s allegations, he was aware by May of 1999
that NEChoice was working to scuttle the agreement he negotiated
between Select Energy and the Cape Light Compact, from which he
12
expected “incentive compensation” from Select Energy. He also
believed that NEChoice’s interference was wrongful. By September
of 1999, when the agreement and Sheeler’s compensation had been
delayed for several months and Sheeler was excluded from the
ongoing negotiations on the agreement due to his stance against
NEChoice, he knew that NEChoice’s actions had injured him.
Although he may not have been aware of the full extent of his
alleged injury, such as that an agreement would be signed and he
would not be compensated for his part in negotiating the
agreement, he knew before December 2 3 , 1999, that NEChoice had
taken actions against the agreement and against him, which he now
alleges in support of his claim, and that he had been injured by
those actions. Therefore, that part of Sheeler’s tortious
interference claim based on the Compensation Plan is time-barred.
B. Conspiracy to Tortiously Interfere with Contract
Sheeler alleges that Select Energy and NEChoice conspired to
tortiously interfere with the agreement he negotiated between
Select Energy and the Cape Light Compact to deprive him of his
“incentive compensation” from the agreement. NEChoice moves to
dismiss the claim on the ground that in the absence of tortious
interference with contract, Sheeler cannot state a claim for
civil conspiracy based on that claim.
13
“For a civil conspiracy to exist, there must be an
underlying tort which the alleged conspirators agreed to commit.”
Univ. Sys. of N.H. v . U.S. Gypsum Co., 756 F. Supp. 6 4 0 , 652
(D.N.H. 1991). Sheeler failed to allege a tortious interference
claim based on NEChoice’s actions to prevent the agreement
between Select Energy and the Cape Light Compact. The part of
his claim based on interference with the Select Energy
Compensation Plan is time-barred, making any conspiracy to commit
that tort untimely as well. Because Sheeler’s underlying
tortious interference with contract claim is dismissed, his claim
for civil conspiracy based on tortious interference is also
dismissed.
C. Civil Conspiracy to Effect Wrongful Discharge of
Employment
The elements of a civil conspiracy claim are “(1) two or
more persons (including corporations); (2) an object to be
accomplished (i.e., an unlawful object to be achieved by lawful
or unlawful means or a lawful object to be achieved by unlawful
means); (3) an agreement on the object or course of action; (4)
one or more unlawful overt acts; and (5) damages as the proximate
14
result thereof.” Jay Edwards, Inc. v . Baker, 130 N.H. 4 1 , 47
(1987). NEChoice contends that no claim exists for civil
conspiracy to effect wrongful discharge, that the claim is
untimely, that the underlying wrongful discharge claim is
meritless requiring dismissal of the conspiracy claim, and that
Sheeler’s allegations are insufficient to state a claim.
1. Viability of claim for civil conspiracy to effect
wrongful discharge.
NEChoice relies on a decision of the California Court of
Appeals, construing civil conspiracy under California law, to
assert that no cause of action exists for conspiracy to effect
wrongful discharge. See Weinbaum v . Goldfarb, Whitman & Cohen,
54 Cal. Rptr. 2d 462 (Cal. C t . App. 1996). Under California law,
liability under a conspiracy theory “‘presupposes that the
coconspirator is legally capable of committing the tort, i.e.,
that he or she owes a duty to plaintiff recognized by law and is
potentially subject to liability for breach of that duty.’”
Id.
at 465 (quoting Applied Equip. Corp. v . Litton Saudi Arabia Ltd.,
869 P.2d 4 5 4 , 457 (Cal. 1994)). Because only an employer may be
liable for wrongful discharge, the court held that defendants
other than the employer could not be liable for conspiracy to
effect wrongful discharge. Id. at 466.
NEChoice points to no New Hampshire case that limits the law
15
of conspiracy in the same way. Nor does NEChoice attempt to
analogize the California law pertaining to civil conspiracy with
existing New Hampshire law. Because NEChoice chose the federal
forum, by removing the case from state court, “[i]t has no right
to grouse if a federal court, sitting in diversity jurisdiction,
declines to push state law past previously established
frontiers.” U.S. Liab. Ins. C o . v . Selman, 70 F.3d 6 8 4 , 693 (1st
Cir. 1995). Under these circumstances, the California court’s
interpretation of California law is not persuasive and does not
provide a basis to dismiss the claim.
2. Timeliness of the claim.
NEChoice contends that the conspiracy to effect wrongful
discharge claim is untimely because Sheeler received notice on
November 5 , 1999, before the limitation deadline, that he would
be discharged on December 2 6 , 1999. The actual date of
termination was December 3 1 , 1999, after the limitation deadline.
Sheeler argues that the date of termination, not the date of
notice, controls the beginning of the limitation period.
The Supreme Court has held that in discrimination cases
based on an employer’s discriminatory decision which lead to the
employee’s discharge, the claim accrues when the employee
receives notice of the discriminatory decision, not when the
discharge occurs. See Chardon v . Fernandez, 454 U.S. 6, 8
16
(1981); Del. State Coll. v . Ricks, 449 U.S. 2 5 0 , 258 (1980).
Some courts have also applied the Chardon/Ricks rule in common
law wrongful discharge cases. See, e.g., Stephenson v . Am.
Dental Ass’n,
789 A.2d 1248, 1250-51 (D.C. 2002); but see
Alderiso v . Med. Ctr. of Ocean County, Inc.,
770 A.2d 275, 279-82
(N.J. 2001) (distinguishing Ricks and Chardon and holding that
date of discharge establishes time of accrual for claim of
wrongful discharge under state whistle blower statute).
The New Hampshire Supreme Court appears to have considered
the Chardon/Ricks rule only once, and NEChoice cites no federal
cases applying the Chardon/Ricks rule under New Hampshire law.5
In Appeal of Pritchard, 137 N.H. 291 (1993), the supreme court
considered the time limit imposed by RSA 21-I:58, I , which states
that an employee may appeal an application of the personnel rules
to the personnel appeals board “‘within 15 calendar days of the
action giving rise to the appeal.’”
Id. at 293 (quoting RSA 21-
I:58, I ) . The plaintiff contended that the period began on the
5
In addition to Ricks and Chardon, NEChoice cites only a
First Circuit case construing the effect of the Chardon/Ricks
rule in the context of the limitation period of the Equal Credit
Opportunity Act, 15 U.S.C. § 1691e(f), and an Eleventh Circuit
case construing accrual of a civil rights action for conspiracy
to force retirement under a Florida statute of limitations.
Farrell v . Bank of N.H., 929 F.2d 8 7 1 , 874 (1st Cir. 1991);
Newberger v . U.S. Marshals Serv., Inc.,
751 F.2d 1162 (11th Cir.
1985). Neither is persuasive, particularly in light of their
inapplicability to the circumstances of this case.
17
date of her layoff, while the state argued that the period began
when she received notice of the layoff. Id.
The supreme court first held that the period began on the
date of the layoff, not at the time of notice, under the plain
meaning of the statute. Id. Although the state argued that the
Ricks rule applied, the supreme court found the argument
unpersuasive. Id. at 294. The court noted that under Ricks the
unlawful employment practice complained of was discriminatory
denial of tenure, not the subsequent discharge resulting from
denial of tenure. Id. Because Prichard appealed from her
layoff, not the state’s initial decision to layoff employees, the
Ricks rule did not apply. Id.
Similarly, in this case, Sheeler alleges a conspiracy to
effect wrongful discharge. For purposes of the underlying
wrongful discharge claim, he challenges the legality of the
discharge, not the decision to discharge him.6 Although the
alleged conspiracy necessarily would have occurred before the
decision to discharge was made, no cause of action for conspiracy
arose until the underlying tort, wrongful discharge, occurred.
See Univ. Sys. of N.H., 756 F. Supp. at 652. Because the act
complained of in Sheeler’s conspiracy to effect wrongful
6
Termination of employment, that is discharge, is an
essential element of a wrongful discharge claim. Karch v .
BayBank FSB, 147 N.H. 525, 536 (2002).
18
discharge is his discharge on December 3 1 , 1999, the claim is not
time-barred.
3. Underlying claim for wrongful discharge.
NEChoice contends that the conspiracy claim fails because
the underlying wrongful discharge claim is without merit.
Specifically, NEChoice argues that Sheeler alleges an employment
contract, barring a wrongful discharge claim, and fails to allege
a public policy basis for the claim.
Wrongful discharge is a cause of action available to at-will
employees. Cilley v . N.H. Ball Bearings, Inc., 128 N.H. 4 0 1 , 405
(1986). In contrast, when an employee’s terms of employment are
governed by an express contract, he is limited to a breach of
contract action. See Censullo v . Brenka Video, Inc.,
989 F.2d
4 0 , 42 (1st Cir. 1993). I f , however, the employment contract is
silent as to the duration of employment, the employee is at will,
despite an express agreement as to other terms of employment.
Nat’l Employment Serv. Corp. v . Olsten Staffing Serv., Inc.,
145
N.H. 1 5 8 , 162 (2000).
NEChoice contends that because Sheeler alleges a breach of
contract claim against Select Energy and asserts the existence of
an agreement in support of the public policy component of
wrongful discharge, he was not an at-will employee and cannot
bring a wrongful discharge claim. Sheeler alleges that the terms
19
of his compensation were governed by the Compensation Plan and
other agreements. He also alleges that public policy requires an
employer to adhere to the terms of an employment agreement. He
does not allege that the Compensation Plan, or any other
agreement with Select Energy, provided for the duration of his
employment. Indeed, his breach of contract claim alleges breach
of Select Energy’s obligation to pay him “incentive
compensation,” but does not allege breach of an obligation to
employ him for a certain term or not to discharge him absent
certain conditions. Therefore, Sheeler’s allegations do not
necessarily contradict at-will employment status and do not
preclude a wrongful discharge claim.
“To establish a wrongful discharge claim, a plaintiff must
allege and prove that: (1) the termination of employment was
motivated by bad faith, retaliation or malice; and (2) that [he]
was terminated for performing an act that public policy would
encourage or for refusing to do something that public policy
would condemn.” Karch, 147 N.H. at 536. Public policy includes
a wide range of societal goals including safety and public
welfare, protection of an at-will employee’s promised
compensation, and good faith reporting of reasonably perceived
improper activity. See
id. at 537; Centronics Corp. v . Genicom
Corp.,
132 N.H. 133, 139 (1989); Cloutier v . Great Atl. & Pac.
Tea Co.,
121 N.H. 915, 922-23 (1981); see generally Harper v .
20
Healthsource N.H., Inc., 140 N.H. 7 7 0 , 775 (1996). “In most
instances, it is a question for the jury whether the alleged
public policy exists.” Cilley v . N.H. Ball Bearings,
128 N.H.
401, 406 (1986).
Sheeler alleges that he was terminated, in part, because of
his disclosure of fraud, misrepresentation, and collusion in the
bidding process for the Cape Light Compact agreement. He also
alleges that he was terminated to avoid paying him compensation,
which he believed he was entitled to receive. Based on those
allegations, it cannot be decided as a matter of law that Sheeler
failed to allege that he was terminated for acting in a way
supported by public policy or for refusing to act in a way
condemned by public policy.
4. Sufficiency of the conspiracy allegations.
Relying on a state law pleading standard, NEChoice asserts
that Sheeler’s allegations of conspiracy are insufficient to
maintain the claim. See Jay Edwards, Inc., 130 N.H. at 47-48.
In federal court, the forum chosen by the defendants, the Federal
Rules of Civil Procedure govern the pleading standard. Rule
8(a)(2) requires only “a short and plain statement of the claim
showing that the pleader is entitled to relief.” To be sure, in
federal court as in state court, a claim must be supported by
pertinent and non-conclusory factual allegations to avoid
21
dismissal. See, e.g., Rosa v . Park West Bank & Trust Co., 214
F.3d 213, 216 (1st Cir. 2000); Rogan v . Menino,
175 F.3d 7 5 , 77
(1st Cir. 1999); DM Research, Inc. v . Coll. of Am. Pathologists,
170 F.3d 5 3 , 55-56 (1st Cir. 1999).
In the amended complaint, Sheeler alleges an ongoing
relationship between NEChoice and Select Energy related to the
Cape Light Compact, pertaining to the Cape Light Compact
agreement. He alleges that his discharge by Select Energy “was
orchestrated and was implemented with the assistance and
cooperation of NEC [NEChoice].” Am. Compl. ¶ 9 0 . He further
alleges that the purpose of the conspiracy was to avoid paying
him “incentive compensation” he earned by negotiating the Cape
Light Compact agreement. Id. He claims damages including lost
wages and compensation and loss of business reputation. As such,
although perhaps only minimally sufficient, Sheeler alleges that
NEChoice and Select Energy agreed to wrongfully terminate his
employment to avoid paying him earned “incentive compensation”
and that his employment was terminated, as agreed, causing him
harm. See Jay Edwards, Inc.,
130 N.H. 41 at 4 7 .
Conclusion
For the foregoing reasons, defendant Select Energy’s motion
to dismiss Count VII (document n o . 19.5) is denied. Defendant
NEChoice’s motion to dismiss all claims (document n o . 20) is
22
granted as to Count III and to Count IV against NEChoice and is
otherwise denied.
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
July 2 8 , 2003
cc: James C . McGrath, Esquire
Ronald J. Caron, Esquire
William D. Pandolph, Esquire
Thomas J. Donovan, Esquire
23
