Palmerini v. Fidelity Investments Money Management, Inc.

Filing 20

///ORDER granting 18 Motion for Judgment on the Pleadings as to Count V. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Dennis Palmerini
v.

Civil No. 12-cv-505-JD

Fidelity Brokerage
Services LLC
O R D E R
Dennis Palmerini brought suit against Fidelity Brokerage
Services LLC alleging claims of discrimination under Title I of
the Americans with Disabilities Act, 42 U.S.C. § 12112(b)(5);
negligent and intentional infliction of emotional distress; and
wrongful constructive discharge.1

Fidelity moves for judgment on

the pleadings on the wrongful constructive discharge claim.
Palmerini objects.

Standard of Review
After filing an answer to the complaint, a party may move
for judgment on the pleadings.

Fed. R. Civ. P. 12(c).

The court

uses the same standard as is used for a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).

1

Collins v. Univ. of

Palmerini’s claim under RSA 354-A:7 was previously
dismissed, and Fidelity Brokerage Services LLC was substituted
for Fidelity Investments Money Management, Inc.

N.H., 664 F.3d 8, 13 (1st Cir. 2011).

Under the applicable

standard, the court takes the well-pled allegations as true,
views all of the facts in the light most favorable to the nonmoving party, and determines whether the complaint alleges facts
to support a claim “that is plausible on its face.”

Downing v.

Glove Direct LLC, 682 F.3d 18, 22 (1st Cir. 2012) (internal
quotation marks omitted).

Discussion
Fidelity moves for judgment on the pleadings on Palmerini’s
constructive wrongful discharge claim on the ground that the
claim is precluded by the statutory remedy provided under the
ADA.

Palmerini, who is represented by counsel, does not address

Fidelity’s argument in his objection but instead merely argues
that the allegations in the complaint state a claim for
constructive wrongful discharge.

Because Palmerini has failed to

address the grounds raised by Fidelity in its motion, judgment is
granted in Fidelity’s favor.
“To prevail upon his wrongful discharge claim, the plaintiff
had to establish that: (1) his termination 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.”
2

MacKenzie v. Linehan, 158 N.H. 476, 480 (2009).

When the

discharge was constructive, the plaintiff must also show “that
[his] employer rendered [his] working conditions so difficult and
intolerable that a reasonable person would feel forced to
resign.”

Jeffery v. City of Nashua, 163 N.H. 683, 686 (2012).

In Smith v. F.W. Morse & Co., Inc., 76 F.3d 413, 428-29 (1st Cir.
1996), the court held that a statutory remedy precludes a
wrongful discharge claim.
Fidelity asserts in support of judgment on the pleadings
that the public policy Palmerini relies on for his wrongful
discharge claim is the same issue that he raises in support of
his ADA claim, which under Smith, precludes his wrongful
discharge claim.

In his objection, Palmerini asserts only that

he alleged facts to support the elements of a wrongful discharge
claim.

He states that “public policy would not encourage the

Plaintiff to return to a position for which he was mentally
incapable of performing.”

Obj. at 6.

Palmerini did not address Fidelity’s argument that his
wrongful discharge claim is precluded under Smith.

Although a

contrary theory might have been raised, Palmerini did not do so.
See, e.g., Keele v. Colonial Imports Corp., 2012 WL 1000387, at
*1-*2 (D.N.H. Mar. 23, 2012); True v. DJQ Enters., Inc., 2011 WL
794330, at *1 (D.N.H. Mar. 2, 2011).
3

Therefore, Palmerini failed

to show that he alleged a viable wrongful constructive discharge
claim.

Conclusion
For the foregoing reasons, the defendant’s motion for
judgment on the pleadings on Count V is granted.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 18, 2013
cc:

Darlene M. Daniele, Esquire
Emily G. Rice, Esquire
Edward J. Sackman, Esquire

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