Palmerini v. Fidelity Investments Money Management, Inc.
Filing
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///ORDER granting 6 Motion to Dismiss Count II. 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
Opinion No. 2013 DNH 040
Fidelity Investments Money
Management, Inc.
O R D E R
Dennis Palmerini brought suit against Fidelity Investments
Money Management, Inc., his former employer, alleging
discrimination under Title I of the Americans with Disabilities
Act, 42 U.S.C. § 12112(b)(5); violation of RSA 354-A:7; negligent
and intentional infliction of emotional distress; and wrongful
constructive discharge.1
Fidelity moves to dismiss the claim
brought pursuant to RSA 354-A:7.
Palmerini, who is represented
by counsel, did not respond to the motion to dismiss.
Standard of Review
In reviewing a complaint for purposes of a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), the court
considers only the factual allegations, not conclusory
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Fidelity states that Palmerini was employed by Fidelity
Brokerage Services, LLC.
statements.
Juarez v. Select Portfolio, Servicing, Inc., ---
F.3d ---, 2013 WL 500868, at *4 (1st Cir. Feb. 12, 2013).
Taking
the properly pleaded facts as true, the court must determine
whether they state a “plausible, not merely a conceivable, case
for relief.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
(1st Cir. 2011).
Discussion
Fidelity moves to dismiss Palmerini’s claim under RSA 354A:7 on the ground that the claim is barred because Palmerini did
not appeal the ruling of the New Hampshire Commission on Human
Rights (“NHCHR”) to the New Hampshire Superior Court.
As noted
above, Palmerini did not file a response.
In support of its motion, Fidelity filed copies of the
complaint Palmerini filed with the NHCHR and the NHCHR’s letter
after its investigation.
7, 2011.
Palmerini’s complaint is dated January
In the complaint, Palmerini alleged that Fidelity
retaliated and discriminated against him because of his mental
impairments of depression and post traumatic stress disorder.
On
September 4, 2012, the NHCHR issued a letter finding no probable
cause and dismissed the complaint.
The letter stated that
Palmerini could appeal the no probable cause ruling to the
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Superior Court or move to have the NHCHR reconsider the ruling.
Palmerini filed the complaint in this court on December 20, 2012.
In his complaint filed here, Palmerini alleges that he
received a right to sue letter from the Equal Employment
Opportunity Commission but does not mention the NHCHR proceeding.
Fidelity represents that “[t]he public record reveals no evidence
that the Plaintiff appealed this decision, and Plaintiff does not
allege that he appealed in his Complaint.”
Under New Hampshire law, “[a]ny party alleging to be
aggrieved by any practice made unlawful under this chapter may,
at the expiration of 180 days after the timely filing of a
complaint with the commission, or sooner if the commission
assents in writing, but not later than 3 years after the alleged
unlawful practice occurred, bring a civil action for damages . .
. ” in superior court.
RSA 354-A:21-a,I.
However, “[a] superior
court trial shall not be available . . . to a complainant whose
charge has been dismissed as lacking in probable cause who has
not prevailed on an appeal to superior court pursuant to RSA 354A:21,II(a).”
Id.; see also Raymond v. Bob Mariano Jeep Dodge
Sales, 2011 WL 635303, at *2-*3 (D.N.H. Feb. 17, 2011).
“To
prevail on appeal, the moving party shall establish that the
commission decision is unlawful or unreasonable by a clear
preponderance of the evidence.”
RSA 354-A:21,II(a).
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If the prerequisites of RSA 354-A:21-a,I are met, a
plaintiff can bring a claim under RSA 354-A:7 in this court.
Munroe v. Compaq Compute Corp., 229 F. Supp. 2d 52, 66 (D.N.H.
2002).
As would be the case in state court, the plaintiff who
receives a finding of no probable cause from the NHCHR must
successfully appeal that decision in state court before bringing
suit here.
Id.; see also Raymond, 2011 WL 635303, at *3.
In this case, Palmerini could have filed suit after 180 days
from the date he filed his complaint and before the NHCHR issued
its finding of no probable cause.
at *3.
See Raymond, 2011 WL 635303,
Once the NHCHR found no probable cause and dismissed the
complaint, however, Palmerini was required to appeal that ruling
in superior court and obtain a favorable decision before bringing
suit for violation of RSA 354-A:7.
Because Palmerini failed to
follow the procedure prescribed by RSA 354-A:21-a, he cannot
maintain his RSA 354-A:7 claim here.
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Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 6) is granted.
Count II is dismissed.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 20, 2013
cc:
Darlene M. Daniele, Esquire
Emily G. Rice, Esquire
Edward J. Sackman, Esquire
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