Faulkner v. Dartmouth Hitchcock Medical Center et al

Filing 29

///ORDER denying 19 defendants' partial Motion to Dismiss. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christyna Faulkner, MD,
Plaintiff
v.

Case No. 12-cv-482-SM
Opinion No. 2013 DNH 152

Mary Hitchcock Memorial Hospital;
Dartmouth Hitchcock Medical Center;
Marc L. Bertrand, MD, Associate
Dean for Graduate Medical Education;
Peter K. Spiegel, MD, Chair of
Radiology; Anne M. Silas, MD,
Director of Radiology Residency
Program; and Jocelyn D. Chertoff, MD,
Associate Program Director of
Radiology Residency Program,
Defendants
O R D E R
Plaintiff, Dr. Christyna Faulkner, brings this suit against
Mary Hitchcock Memorial Hospital and several of its physicians.
She alleges that defendants unlawfully disclosed her medical
disability to third parties without her consent and wrongfully
terminated her from the hospital’s residency program as a result
of their unwillingness to reasonably accommodate that disability.
Defendants filed a Partial Motion to Dismiss (document no. 19).
During the course of briefing on the motion, the parties narrowed
the issues to one: whether plaintiff’s common law wrongful
discharge claim is displaced by New Hampshire’s antidiscrimination statute, N.H. Rev. Stat. Ann. (“RSA”) 354:A-7.

“To prevail upon h[er] wrongful discharge claim, the
plaintiff . . . [must] establish that: (1) h[er] termination was
motivated by bad faith, retaliation or malice; and (2) that [s]he
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 (2009).

Defendants assert that the public policy on which plaintiff
relies to meet the second element of her wrongful discharge claim
is the state prohibition against discrimination on the basis of
disability, as embodied in RSA 354:A-7.

Relying on Smith v. F.W.

Morse & Co., 76 F.3d 413 (1st Cir. 1996), defendants argue that
plaintiff may not pursue her wrongful discharge claim because the
legislature, in RSA 354:A-7, has provided an exclusive remedy for
discharge on the basis of disability.

In Smith, the court of

appeals for this circuit held that New Hampshire law does not
permit a wrongful discharge cause of action where a statute
“codifies the public policy . . . [and] also creates a private
right of action to remedy violations of that policy.”

Smith, 76

F.3d at 429.

The post-Smith decisions in Bliss v. Stow Mills, Inc., 146
N.H. 550 (2001), and Karch v. BayBank FSB, 147 N.H. 525 (2002),
clarify that the question of statutory displacement is one of
legislative intent.

In Stow Mills and Karch, “the state supreme

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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.”

True v. DJQ Enters., Inc., 2011 WL

794330, at *1 (D.N.H. March 2, 2011).

The “critical issue” under

Stow Mills and Karch is not whether there exists a statutory
alternative, but whether the legislature “intended to substitute
[that] statutory remedy for the common law wrongful discharge
cause of action.” (explaining the import of Bliss and Karch)
(emphasis added).

Id.

Unless defendant shows such legislative

intent, the common law claim is not displaced.

Id. (citing Weeks

v. Wal–Mart Stores, Inc., 2010 WL 3703254, at *3 (D.N.H. Sept. 6,
2010); Slater v. Verizon Communications, Inc., 2005 WL 488676
(D.N.H. March 3, 2005)).

Defendants suggest, but have not shown, that the state
legislature intended RSA 354:A-7 to displace the common law cause
of action for wrongful discharge in discrimination cases.
Although they invoke a recent unpublished state superior court
decision to support their view of what the legislature intended,
they do not discuss the reasoning of that decision, and did not
attach the case for the court’s review.

Nor do defendants

mention Stow Mills and Karch, or distinguish their case from the

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recent decision in Keele v. Colonial Imports Corp., 2012 WL
1000387, at *2 (D.N.H. March 23, 2012) (DiClerico, J.), in which
this court found that defendant failed to demonstrate that the
state legislature intended causes of action under RSA 354-A to
displace claims for common law wrongful discharge.

See also

True, 2011 WL 794330, at *1; Weeks v. Wal-Mart Stores, Inc., 2010
WL 3703254, at *3-4 (D.N.H. Sept. 16, 2010); Schomburg v. Dell,
2006 WL 2864048, at *1, n.2 (D.N.H. Oct. 4, 2006).

Plaintiff’s wrongful discharge claim is not, therefore,
subject to dismissal on the single ground advanced by defendants
– that RSA 354:A-7 is plaintiff’s exclusive state law remedy.
Because the defendants do not raise or brief it, the court does
not reach the perhaps dispositive issue of whether plaintiff
states a viable wrongful discharge claim in the first place.

See

e.g., Schomburg, 2006 WL 2864048, at *1 (“A condition that is
protected by public policy, such as sickness, disability, and
age, as distinguished from acts by the employee that are
protected by public policy, does not satisfy the second element
of a wrongful discharge claim.”) (emphasis in original) (citing
Howard v. Dorr Woolen Co., 120 N.H. 295, 297 (1980)).

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Conclusion
For these reasons, defendants’ Partial Motion to Dismiss
(document no. 19) is denied.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
November 13, 2013
cc:

George T. Campbell, III, Esq.
Edward M. Kaplan, Esq.
Christopher J. Pyles, Esq.

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