McPadden v. Walmart Stores, Inc. et al

Filing 18

ORDER denying 13 defendants' motion to dismiss counts seven, eight, and nine of amended complaint. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Maureen McPadden,
Plaintiff
v.

Case No. 14-cv-475-SM
Opinion No. 2015 DNH 074

Wal-Mart Stores East, L.P.,
and Jennifer Fonseca,
Defendants
O R D E R
For 18 years, Wal-Mart employed Maureen McPadden as a
pharmacist at its store in Seabrook, New Hampshire.

It

terminated her employment - ostensibly for misplacing a key to
the pharmacy - in November of 2012.

Not long thereafter,

McPadden filed a charge of discrimination with the New Hampshire
Commission for Human Rights.

And, subsequently, she filed this

suit, in which she advances both state and federal claims that
include workplace discrimination, retaliation, failure to
accommodate her disability, invasion of privacy, and negligence.

Wal-Mart moves to dismiss three of McPadden’s pending
claims, asserting that they are barred by New Hampshire’s
Workers’ Compensation law.
motion is denied.

For the reasons discussed, that

Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
favor of the pleader.”
Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441 (1st

Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).

Background
In her amended complaint, McPadden advances two types of
claims against Wal-Mart.

Those in the first category arise out

of her employer-employee relationship with Wal-Mart (e.g.,
workplace discrimination, wrongful termination, etc.).

The

second category of claims - those which are implicated in the
pending motion to dismiss - arise out of McPadden’s status as a
customer of Wal-Mart’s pharmacy in the Salem store, where she had
her personal prescriptions filled.

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McPadden says that becoming a customer of Wal-Mart’s
pharmacy was not a condition of her employment; rather, she chose
to have her personal prescriptions filled at that location.

She

also says that in order to be a customer, she was required to
(and did) provide private and protected health information as
part of her pharmacy patient profile record.

She claims that in

the fall of 2012, defendant Jennifer Fonseca, a Wal-Mart pharmacy
technician at the Seabrook store, accessed McPadden’s private
health information and discovered that she suffered from a
serious medical condition.

McPadden goes on to allege that

Fonseca subsequently disclosed that private and protected medical
information to other employees of the Seabrook store - conduct
McPadden says violated her privacy rights under the common law
and the Health Insurance Portability and Accountability Act (also
known as “HIPAA”).

In her amended complaint, McPadden advances three claims
that arise out of that (alleged) conduct: invasion of privacy;
negligent supervision; and negligent infliction of emotional
distress.

Those three counts are the subject of Wal-Mart’s

motion to dismiss.

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Discussion
In support of its motion to dismiss, Wal-Mart asserts that
McPadden’s tort claims are barred by the exclusivity provisions
of New Hampshire’s Workers’ Compensation Statute, N.H. Rev. Stat.
Ann. (“RSA”) 281-A:8.

To be sure, “[a]s a general rule, any

claim based upon negligence by an employer or co-employee for
personal injuries arising out of or in the course of employment
Karch v. BayBank FSB, 147 N.H.

is barred by RSA 281-A:8, I(b).”
525, 530 (2002).

The dispositive question is, then, whether the

claims and asserted injuries at issue “arise out of” McPadden’s
employment by Wal-Mart.

They do not.

The New Hampshire Supreme Court has held that for an injury
to be subject to the state’s workers’ compensation law, the party
seeking such coverage must prove:
(1) that the injury arose out of employment by
demonstrating that it resulted from a risk created by
the employment; and (2) that the injury arose in the
course of employment by demonstrating that (A) it
occurred within the boundaries of time and space
created by the terms of employment; and (B) that it
occurred in the performance of an activity related to
employment, which may include a personal activity if
reasonably expected and not forbidden, or an activity
of mutual benefit to employer and employee.
Murphy v. Town of Atkinson, 128 N.H. 641, 645-46 (1986) (emphasis
supplied) (citations omitted).

Here, it is plain that Fonseca’s

alleged disclosure of McPadden’s confidential medical
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information, and McPadden’s resulting injuries, did not result
from a risk created by McPadden’s employment by Wal-Mart.

Nor

did her injuries arise in the course of that employment.
McPadden’s tort claims (with the obvious exception of her
wrongful termination claim) arise out of her status as a customer
of Wal-Mart’s pharmacy, not her status as an employee of WalMart.

Wal-Mart does not argue otherwise.

Such claims are not

barred by New Hampshire’s Workers’ Compensation Law.

Conclusion
For the foregoing reasons, as well as those set forth in
McPadden’s legal memorandum (document no. 15), defendants’ motion
to dismiss counts seven, eight, and nine of the amended complaint
(document no. 13) is denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
April 2, 2015
cc:

Richard E. Fradette, Esq.
Joseph A. Lazazzero, Esq.
Christopher B. Kaczmarek, Esq.

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