Hudson v. Dr. Michael J. O'Connell's Pain Care Ctr., Inc.

• Decision Date: 04 October 2011
• Docket Number: Civil No. 11–cv–278–JD.
• Citation: 2011 DNH 160,822 F.Supp.2d 84
• Parties: Kaitlin HUDSON v. DR. MICHAEL J. O'CONNELL'S PAIN CARE CENTER, INC. and Dr. Michael J. O'Connell.
• Court: U.S. District Court — District of New Hampshire

2011 DNH 160
822 F.Supp.2d 84

Kaitlin HUDSON
v.
DR. MICHAEL J. O'CONNELL'S PAIN CARE CENTER, INC. and Dr. Michael J. O'Connell.

Civil No. 11–cv–278–JD.

United States District Court, D. New Hampshire.

Oct. 4, 2011.

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John P. Sherman, Sherman Law PLLC, Portsmouth, NH, for Plaintiff.

William E. Christie, Shaheen & Gordon, Concord, NH, for Defendants.

ORDER JOSEPH A. DiCLERICO, JR., District Judge.

Kaitlin Hudson brings state and federal claims against her former employer, Dr. Michael J. O'Connell's Pain Care Center, Inc., and Dr. Michael J. O'Connell, arising from her relationship with O'Connell and the conditions of her employment at the Pain Care Center. The defendants move to dismiss her complaint, arguing that Hudson has not stated a claim. Hudson objects to the motion.

Standard of Review

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must determine whether the facts alleged, when taken as true and in the light most favorable to the plaintiff, state a claim on which relief can be granted. Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir.2009). Under the notice pleading standard of Federal Rule of Civil Procedure 8(a)(2), a plaintiff need provide only a short and plain statement that provides enough facts “ ‘to raise a right to relief above the speculative level....’ ” Ocasio–Hernandez v. Fortuno–Burset, 640 F.3d 1, 12 (1st Cir.2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The court must separate the factual allegations from any legal conclusions and decide whether the factual allegations, taken as true, state a plausible claim for relief. Ocasio–Hernandez, 640 F.3d at 10–11 (applying

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Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009)).

Background ¹

At the time of the events in question, Michael J. O'Connell was a licensed physician. He owned and was employed by Dr. Michael J. O'Connell's Pain Care Center, Inc. (“Center”). The Center hired Hudson as an office assistant in July of 2008. She became a patient of O'Connell at the Center after she was hired.

In December of 2008, O'Connell began a sexual relationship with Hudson, and Hudson moved into O'Connell's home. O'Connell was also Hudson's treating physician and prescribed medications for her. O'Connell threatened Hudson that he would terminate her employment if she did not meet his personal demands, including engaging in sex. O'Connell also told Hudson that if she left the house, went on Facebook, talked about him to other people, or did anything else that displeased him, he would fire her. When Hudson wanted to end the relationship, O'Connell told her that he would fire her if she did not continue their relationship and also threatened to “kick her out of the house” and to file false reports about her with the police. As a recovering drug user, Hudson was not emotionally or financially able to live without her job.

In October of 2009, Hudson began to suspect that O'Connell was involved with a woman, who had lived at O'Connell's beach house. O'Connell previously had told Hudson that the woman's husband had herpes, which was so severe that the husband had been hospitalized. When Hudson suspected that O'Connell was involved with the woman, she underwent a herpes test, which yielded positive results. Hudson had never had herpes before her relationship with O'Connell.

After their sexual relationship ended, O'Connell did not allow Hudson to work at the Center on Saturday, as other employees did, to make extra money. Instead, O'Connell told Hudson she could clean his house and mow his yard for extra money. Hudson did those jobs in order to maintain her employment. As he had before and during their sexual relationship, O'Connell continued to subject Hudson to sexually suggestive behavior at work, such as pinching her buttocks, pinching other parts of her body while saying she looked like she was gaining weight, and telling her she was looking good.

Hudson eventually refused to continue to work at O'Connell's house, and the Center put her on probation, ostensibly because of events that had occurred a year earlier. At a work meeting, Hudson raised a concern that male doctors were favoring female patients over male patients. O'Connell threatened to fire her and told her “just shut the f* *k up” and “suck it up or leave.” The Center changed Hudson's job from administrative assistant to medical assistant, a position that Hudson had not been trained to do. The Center assigned her menial tasks in her new position and then transferred her to another office to work with a doctor that the Center staff believed was difficult.

As her treating physician, O'Connell provided Hudson with medication for herpes. In December of 2010, other Center employees began to make remarks to Hudson about her herpes diagnosis. Hudson had not mentioned herpes to anyone, other than O'Connell, at the Center. When she checked her medical file on the Center computer, she discovered that it was not marked as confidential. As a

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result, her records were available to all Center employees.

On December 6, 2010, Hudson reported the problem with her medical records to the Human Resources department at the Center. The department staff told Hudson to discuss the problem with O'Connell. Hudson called O'Connell and told him that other employees had read her medical records and were discussing her medical condition. O'Connell responded that if Hudson “did not stop talking to H.R. he would f* * *ing fire her.”

During the call, O'Connell also said that someone had filed an anonymous complaint against him with the New Hampshire Board of Medicine. He said that the complaint included information, which was “right on,” including that Hudson was married when she started working at the Center and that she ended her marriage when she began her relationship with O'Connell. O'Connell accused Hudson of filing the complaint and told her that she would have to write to the Medical Board to say that the complaint was not true or he would fire her. O'Connell also said that they would meet the next day to discuss the complaint. Hudson was upset and left work after the call with O'Connell. A Human Resources employee contacted Hudson to check on her because she had noticed how upset Hudson was when she left.

The next day, December 7, 2010, O'Connell met Hudson in a conference room. O'Connell showed Hudson the complaint. Hudson told O'Connell that she would not lie to the Board of Medicine. O'Connell responded that Hudson was going to ruin his life and cost 140 people their jobs. Hudson was distraught and left work, using her accrued sick time to avoid coming to work. She has not returned to work since that time.

Discussion

Hudson alleges claims against the Center of “constructive discharge/wrongful termination,” sexual harassment, retaliation, quid pro quo harassment, and hostile work environment. She alleges claims of battery, negligent infliction of emotional distress, and negligence against O'Connell. She also alleges invasion of privacy and intentional infliction of emotional distress against the Center and O'Connell. The defendants move to dismiss all of the claims.

I. Employment Claims

Hudson alleges a constructive discharge/wrongful termination claim in Count I under New Hampshire law. In Counts VI, VII, VIII, and IX, Hudson alleges sexual harassment, retaliation, quid pro quo harassment, and hostile work environment.

A. Constructive Discharge/Wrongful Termination—Count I

New Hampshire recognizes a claim for wrongful termination when an employee alleges facts showing that “(1) [her] termination was motived by bad faith, retaliation or malice; and (2) that [she] was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn.” MacKenzie v. Linehan, 158 N.H. 476, 480, 969 A.2d 385 (2009). The termination of employment element of wrongful termination may be by constructive discharge, rather than an express termination. Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248–49, 910 A.2d 1262 (2006). Constructive discharge occurs when “an employer renders an employee's working conditions so difficult and intolerable that a reasonable person would feel forced to resign.” Id. (internal quotation marks omitted). Minor abuse will not support

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constructive discharge, and instead, the employee must allege facts showing that the adverse working conditions were “ ‘ongoing, repetitive, pervasive, and severe.’ ” Id. at 249, 910 A.2d 1262 (quoting Porter v. City of Manchester, 151 N.H. 30, 42, 849 A.2d 103 (2004)).

The defendants move to dismiss Hudson's wrongful termination/constructive discharge claim on the ground that she has not alleged facts to support constructive discharge and, therefore, cannot maintain her wrongful termination claim.² In support of the motion, the defendants parse through Hudson's experiences, arguing that none was severe or pervasive enough to constitute constructive discharge. The defendants also argue that because the sexual relationship with O'Connell ended months before Hudson left, that conduct cannot be considered a basis for constructive discharge. Further, the defendants contend that O'Connell's threats to fire her for talking to Human Resources and if she refused to write the letter to the Medical Board were insufficient to support constructive discharge. Hudson contends that she has alleged working conditions that were sufficiently severe and pervasive to state her claim.

Hudson alleges that she was compelled to enter and continue a sexual relationship with her boss, O'Connell, in order to keep her job. When that relationship ended, O'Connell would not allow Hudson to work at the Center on Saturdays as other employees did and instead told her she could clean his house and mow his yard to earn extra money. He also...