Chamberlin v. 101 Realty, Inc.

Decision Date30 December 1985
Docket NumberCiv. No. 84-692-D.
Citation626 F. Supp. 865
PartiesKatherine M. CHAMBERLIN v. 101 REALTY, INC.; Matthew Zsofka, individually and in his official capacity as President of 101 Realty, Inc.
CourtU.S. District Court — District of New Hampshire

Katherine A. Daly, Concord, N.H., for plaintiff.

Jack S. White, Nashua, N.H., Kevin G. Powers, Lynn, Mass., for defendants.

ORDER

DEVINE, Chief Judge.

In this action plaintiff Katherine Chamberlin has brought suit against defendants 101 Realty, Inc. ("Realty"), and its president Matthew Zsofka, both individually and officially, for damages arising out of plaintiff's termination of employment with defendants. Realty is a real estate development corporation located in Amherst, New Hampshire, and it had employed plaintiff as an architect from February to September 1983. Plaintiff has raised one federal and three pendent state law claims in her complaint. Plaintiff complains in Count I that defendants' actions were unlawful under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, in Count II that defendants' actions constituted wrongful discharge under state law, in Count III that defendants' actions constituted intentional infliction of emotional distress under state law, and in Count IV that defendant Zsofka made defamatory remarks under state law. Presently before the Court is defendants' motion to dismiss, Rule 12(b), Fed.R.Civ.P., or alternatively for summary judgment, Rule 56, Fed.R.Civ.P., with respect to the three state law claims (Counts II through IV) and plaintiff's objection thereto.

Count II

Consideration of a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P., requires application of the rule that the "material facts alleged in the complaint are to be construed in the light most favorable to the plaintiff and taken as admitted, with dismissal ordered only if the plaintiff is not entitled to recover under any set of facts it might prove." Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), aff'd without opinion, 745 F.2d 43 (1st Cir.1984) (citations omitted). Upon review of plaintiff's complaint and application of the above standard thereto, the Court finds and rules that defendants' motion to dismiss Count II, the state law wrongful discharge claim, must be denied.

Plaintiff's complaint, paragraphs 7 through 25, alleges facts which, as construed in the light most favorable to plaintiff and taken as admitted, indicate that plaintiff was fired from her position as an architect in retaliation for rebuffing the improper sexual advances of her employer, defendant Zsofka. These allegations are strikingly similar to the facts supporting a claim for wrongful discharge in the seminal wrongful discharge case, Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974). The evidence in Monge was to the effect that plaintiff, a married woman with three children, was discharged, not for incompetence, but for her refusal to accept her supervisor's invitations to dating. These facts led the New Hampshire Supreme Court to declare (as an exception to the well-established rule that an employee at will can be discharged for any cause or no cause) that an employee has a right to recover for a termination of employment "motivated by bad faith or malice or based on retaliation." Id. at 133, 316 A.2d 549.

Understandably, ingenious counsel saw the Monge decision as an invitation to bring an action for wrongful discharge in every case of termination of employment. Accordingly, in Howard v. Dorr Woolen Company, 120 N.H. 295, 414 A.2d 1273 (1980), the plaintiff claimed his improper discharge was due to illness and age. The Court responded by holding that the doctrine of Monge v. Beebe Rubber Company, supra, is applicable only to situations "where an employee is discharged because he performed an act that public policy would encourage, or refused to do that which public policy would condemn." Howard v. Dorr Woolen Company, supra, 120 N.H. at 297, 414 A.2d 1273. The court went on to hold that a discharge due to sickness was not within this category, given the availability of medical insurance or disability provisions in an employment contract, and that the remedy for discharge because of age was to be found in the provisions of both state and federal statutes, specifically the New Hampshire law against discrimination, New Hampshire Revised Statutes Annotated ("RSA") 354-A, and the federal Age Discrimination in Employment Act, 29 U.S.C. §§ 623, 626. Id.

The New Hampshire Supreme Court correlated Monge and Howard and articulated a two-part test for establishing a commonlaw claim for wrongful discharge. Cloutier v. Great Atlantic & Pacific Tea Company, 121 N.H. 915, 436 A.2d 1140 (1981). According to the court therein, to state a claim for wrongful discharge from employment, plaintiff must show that defendant was motivated by bad faith, malice, or retaliation, and must demonstrate that he was discharged because he performed an act that public policy would encourage or refused to do something that public policy would condemn. Id.; see Vandegrift v. American Brands Corp., 572 F.Supp. 496 (D.N.H.1983).

If plaintiff can prove the facts with inferences therefrom as alleged in her complaint, recovery would be warranted under state law, and dismissal at this stage of the proceedings would therefore be inappropriate. Plaintiff has alleged first that her discharge was retaliatory in nature (Complaint, ¶¶ 20-25), and thus, if established, would satisfy the first test under Cloutier v. Great Atlantic & Pacific Tea Company, supra. While recognizing that the scope of the Monge decision has been narrowed, the Court is satisfied that public policy would condemn the acceptance of sexual harassment by an employee as a means of retaining employment; thus the second test under Cloutier for establishing a claim of wrongful discharge is satisfied. Plaintiff's pleadings are accordingly sufficient to withstand a motion to dismiss.

Count III

Defendants have also moved for summary judgment1 with respect to Count III (Complaint, ¶¶ 26-31), which asserts a cause of action for intentional infliction of emotional distress. Defendants argue first that New Hampshire does not recognize such a cause of action, and second, that even if it did, the actions complained of by plaintiff are not sufficient to constitute the tort. For the following reasons, the Court finds these arguments to be without merit and rules that the motion for summary judgment must be denied.

While there is a paucity of New Hampshire case law discussing the tort of intentional infliction of mental distress, the Court's review thereof has revealed enough to satisfy it that such a cause of action does exist. Almost eighty years ago, the New Hampshire Supreme Court in Prescott v. Robinson, 74 N.H. 460, 69 A. 522 (1908), made reference to the recovery of damages for the intentional infliction of mental suffering. Prescott involved the issue of the extent to which a negligent defendant is liable for a plaintiff's emotional distress, and the court articulated that

if in the case at bar the fact was that the defendant maliciously inflicted the injury upon the plaintiff, one of the natural and intended results of the act would be to cause the plaintiff great mental distress.... It might not be incorrect to say that it would be conclusively presumed that the defendant's purpose was to inflict upon her the mental suffering she sustained, and hence ought to pay for it.

Id. at 465, 69 A. 522.

More recently the New Hampshire Supreme Court had occasion to discuss this cause of action in a case where a plaintiff complained that a defendant insurance company intentionally inflicted mental distress by denying insurance coverage. Jarvis v. Prudential Insurance Co., 122 N.H. 648, 448 A.2d 407 (1982). The court therein held:

Assuming arguendo that this Court, in an appropriate case, would recognize the tort of intentional infliction of mental distress, this is not such a case. Our review of the factual allegations before us convinces us that the defendant's conduct would, as a matter of law, fail to meet the definition of `outrageous conduct' set forth in the Restatement of Torts. Restatement (Second) of Torts § 46, at 72-73 (1965).

Id. at 652, 448 A.2d 407 (citation omitted). This language is significant to the extent that the New Hampshire Supreme Court had the opportunity to summarily dismiss the cause of action as one not cognizable under state law. The Court, however, shunned the opportunity to so dismiss, recognized that the cause of action might be appropriate in certain cases, and analyzed the claim on its merits. The action by the New Hampshire Supreme Court in Jarvis thus evidences the existence of a cause of action for intentional infliction of mental distress.

A year and a half after the Jarvis decision, the New Hampshire Supreme Court in a brief but succinct statement confirmed the existence of this cause of action under state law. In Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983), a plaintiff sought damages for severe emotional distress for a defendant's aiding and abetting in the interference with parental custody. While holding that certain damages are recoverable for the interference with parental custody, the court noted that "we are of the opinion that a claim for the intentional infliction of emotional distress should be treated as a separate cause of action. See Restatement (Second) of Torts § 46 (1965)." If this cause of action was nonexistent, the New Hampshire Supreme Court would have had no reason to render such an opinion. This Court accordingly is satisfied that New Hampshire recognizes the tort of intentional infliction of emotional distress and that the elements of the cause of action are outlined in Restatement (Second) of Torts § 46 (1965).2

The Court further finds upon review of the pleadings and other submitted documents, including affidavits and...

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