I describe the facts in the light most favorable to the 1

plaintiff. 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

LORI PERROTTI

v. Case No. 05-cv-243-PB

WAL-MART STORES INC. and 

JOHN DOES ONE THROUGH FIVE

MEMORANDUM AND ORDER

Plaintiff Lori Perrotti worked for defendant Wal-Mart Stores

Inc. (“Wal-Mart”) until she became disabled as a result of a

work-related injury. This lawsuit, which Wal-Mart successfully

removed from state court, stems from the termination of

Perrotti’s health insurance following her injury. Wal-Mart has

filed a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). For the reasons set forth below, I grant

Wal-Mart’s motion. 

I. FACTUAL BACKGROUND1

Perrotti held a full-time job as a manager at Wal-Mart. 

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 1 of 10
 Perrotti filed an affidavit stating that the injury 2

occurred on September 27, 1999. The difference in dates has no

bearing on my reasoning.

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State Court Writ (“Compl.”) ¶ 4. Her compensation package

included health insurance. Id. On April 28, 2001, she suffered

an on-the-job injury and became unable to work. Id. ¶ 6-7. 2

Nevertheless, she continued to be “an active employee” and

remained eligible for Wal-Mart’s health insurance plan so long as

she paid her share of the premium. Id. ¶ 7. 

Perrotti sent her premium payments to an address provided by

Wal-Mart but Wal-Mart failed to forward the payments to the plan. 

Id. ¶ 8-9, Pl.’s Surreply at 2-3. As a result, Perrotti’s health

insurance was terminated. Id. ¶ 10. Wal-Mart repeatedly

promised to reinstate Perrotti’s health coverage but never did

so. Id. ¶ 11. Without health insurance benefits, Perrotti has

not been able to obtain necessary medical care and her health has

declined. Id. ¶ 12-13.

Perrotti’s complaint consists of four counts: negligence,

breach of fiduciary duty, retaliatory discrimination, and breach

of contract (specifically, the covenant of good faith and fair

dealing). She seeks money damages. 

 

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 2 of 10
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II. STANDARD OF REVIEW

In considering a motion to dismiss under Rule 12(b)(6), I

“accept as true the well-pleaded factual allegations of the

complaint, draw all reasonable inferences therefrom in the

plaintiff’s favor and determine whether the complaint, so read,

sets forth facts sufficient to justify recovery on any cognizable

theory.” Martin v. Applied Cellular Tech., 284 F.3d 1, 6 (1st

Cir. 2002). An action should be dismissed “when it appears

certain that the plaintiff would not be entitled to relief even

when allegations are viewed in the light most favorable to her.” 

Stinson v. SimplexGrinnell LP, No. 05-1410, 2005 U.S. App. LEXIS

22913 at *6 (1st Cir. Oct. 21, 2005) (unpublished). 

III. ANALYSIS

A. Counts I, II and IV

Wal-Mart argues that Perrotti’s negligence (Count I) and

breach of contract (Count IV) claims are preempted by the

Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1001 et. seq. Wal-Mart frames its argument with regard

to Perrotti’s breach of fiduciary duty claim (Count II) slightly 

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 3 of 10
 Wal-Mart contends that under ERISA’s civil enforcement 3

scheme, a plaintiff may not assert a breach of fiduciary duty

claim based on the same conduct that underlies a viable denial of

benefits claim. See, e.g., King v. UNUM Life Ins. Co. of Am.,

221 F. Supp. 2d 1, 5 (D. Me. 2002) (The “adequacy of relief

pursuant to section 1132(a)(1) renders [a] breach of fiduciary

duty claim under section 1132(a)(3) superfluous.”). 

 ERISA has broad preemptive force, Hampers v. W.R. Grace & 4

Co., 202 F.3d 44, 49 (1st Cir. 2000), and the “explanation for

the broad preemption provision is clear: By preventing states

from imposing divergent obligations, ERISA allows each employer

to create its own uniform plan, complying with only one set of

rules (those of ERISA) and capable of applying uniformly in all

jurisdictions where the employer might operate.” Simas v. Quaker

Fabric Corp., 6 F.3d 849, 852 (1st Cir. 1993).

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differently, but its preemption argument applies to that claim 3

as well. Thus, I address the three claims together. 

ERISA’s preemption clause provides that ERISA “shall

supersede any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan.” 29 U.S.C. §

1144(a). “‘State law’ includes all laws, decisions, rules,

regulations, or other State action having the effect of law.” 29

U.S.C. § 1144(c). Accordingly, common law causes of action that

arise under state law, such as tort and contract claims, may be

preempted.4

To determine whether a particular cause of action is

preempted by ERISA, I must answer two questions: “‘(1) whether

the plan at issue is an ‘employee benefit plan’ and (2) whether

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 4 of 10
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the cause of action ‘relates to’ this employee benefit plan.’”

Hampers v. W.R. Grace & Co., 202 F.3d 44, 49 (1st Cir. 2000)

(quoting McMahon v. Digital Equip. Corp., 162 F.3d 28, 36 (1st

Cir. 1998)). I take each question in turn.

1. Employee benefit plan

ERISA provides that an “employee welfare benefit plan” is a

type of “employee benefit plan.” 29 U.S.C. § 1002(3). An

“employee welfare benefit plan,” in turn, is defined as 

any plan, fund, or program which was heretofore or is

hereafter established or maintained by an employer or

by an employee organization, or by both, to the extent

that such plan, fund, or program was established or is

maintained for the purpose of providing for its

participants or their beneficiaries, through the

purchase of insurance or otherwise, (A) medical,

surgical, or hospital care or benefits, or benefits in

the event of sickness, accident, disability, [or] death

. . . 

29 U.S.C. § 1002(1). Whether Perrotti’s health insurance plan is

an employee welfare benefit plan is a question of fact. McMahon,

162 F.3d at 36. 

Wal-Mart has filed a copy of the summary plan description

for Perrotti’s health insurance plan, which describes the plan as

“an employer-sponsored, health and welfare employee benefit plan

governed under [ERISA].” Ex. B to Notice of Removal. Perrotti

nevertheless argues that whether her health insurance benefit

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 5 of 10
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qualifies as an employee welfare benefit plan governed by ERISA

is a fact “outside the scope of [her complaint]” that “cannot be

verified.” Pl.’s Obj. at 2. I disagree.

Perrotti alleges that she was “eligible for health insurance

through Wal-Mart,” Compl. ¶ 7, and that her “benefits” as a fulltime management-level employee included “health and dental

insurance.” Compl. ¶ 4. She also refers to Wal-Mart as “an

employer who provides insurance to its employees.” Compl. ¶ 17. 

There is no suggestion either that Perrotti’s health insurance

plan was “established or maintained” by an entity other than WalMart, or that the plan’s purpose was anything other than to

provide “medical, surgical, or hospital care or benefits.” 29

U.S.C. § 1002(1). Thus, regardless of the summary plan

description, the complaint’s factual allegations unquestionably

bring Perrotti’s health insurance plan within the ambit of ERISA. 

 2. Relates to

A state law relates to an employee benefit plan “‘if it has

a connection with or reference to such a plan.’” Hampers, 202

F.3d at 49 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

98 (1983)). This is true “‘even if the law is not specifically

designed to affect such plans, or the effect is only indirect and

even if the law is consistent with ERISA’s substantive

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 6 of 10
 Perrotti states that “[a]djudication of plaintiff’s 5

claims does not require construction of the terms of any ERISA

plan.” Pl.’s Surreply at 6. This assertion does not alter my

conclusion because Perrotti has not supported it with an argument

that Wal-Mart’s duty to her arose from a source other than its

obligations under the plan. 

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requirements.’” Id. (quoting District of Columbia v. Greater

Washington Bd. of Trade, 506 U.S. 125, 130 (1992)). On the other

hand, a law does not relate to a plan if the connection is “‘too

tenuous, remote or peripheral,’” id. (quoting Shaw, 463 U.S. at

100 n.21)), and as a result “‘many laws of general

applicability’” will not be preempted. Id. (quoting Greater

Washington Bd. of Trade, 506 U.S. at 130 n.1)). 

The First Circuit has “consistently held that a cause of

action ‘relates to’ an ERISA plan when a court must evaluate or

interpret the terms of the ERISA-regulated plan to determine

liability under the state law cause of action.” Hampers, 202

F.3d at 52. Counts I, II, and IV are all based on Wal-Mart’s

alleged duty to forward Perrotti’s premium payments to the plan. 

That duty, in turn, arises from Wal-Mart’s obligations under the

plan. Accordingly, Perrotti’s claims relate to her health

insurance plan because I must interpret the plan to resolve

them. See Lamberty v. Premier Millwork & Lumber Co., 329 F. 5

Supp. 2d. 737, 742 (E.D. Va. 2004)(claim based on failure to pay

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 7 of 10
 Perrotti baldly asserts that Wal-Mart’s actions amount to 6

“unlawful gender discrimination.” Compl. ¶ 25. She has not

provided any factual support for this allegation other than

“knowledge and belief and considering defendants’ mistreatment of

plaintiff and women in general.” Id. Accordingly, it must be

dismissed for failure to state a claim.

 Perrotti is presumably distancing herself from the 7

statutory discrimination framework because of her admitted

failure to file a charge of discrimination with the EEOC or the

New Hampshire Commission for Human Rights. See Pl.’s Obj. at 9. 

This failure would require dismissal of the retaliatory

discrimination claim and the gender discrimination claim

mentioned in ¶ 25.

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premium preempted); York v. Ramsay Youth Servs., 313 F. Supp. 2d.

1275, 1278-80 (M.D. Ala. 2004) (same).

B. Count III

Perrotti captioned Count III of her complaint “RETALIATORY

DISCRIMINATION – Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-3(a), and NH RSA 354-A:19.” She explains, 6

however, that she cited both statutes only “in general support of

her assertion that the conduct she was subjected to was of the

type prohibited by both of those statutory schemes, as well as

the common law.” Pl.’s Obj. at 8. She now argues that her claim

is for wrongful discharge. 

7

“To establish a wrongful discharge claim, a plaintiff must

allege and prove that: (1) the termination of employment was

motivated by bad faith, retaliation or malice; and (2) that she

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 8 of 10
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was terminated for performing an act that public policy would

encourage or for refusing to do something that public policy

would condemn.” Karch v. BayBank FSB, 147 N.H. 525, 536 (2002).

A “properly alleg[ed] constructive discharge satisfies the

termination component of a wrongful discharge claim.” Karch, 147

N.H. at 536. “‘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. (quoting Seery v. Yale-New Haven Hosp., 554 A.2d

757, 761 (Conn. App. Ct. 1989)). 

Perrotti does not allege either that Wal-Mart fired her or

that she resigned because of intolerable working conditions. 

Instead, she alleges that she stopped working because she became

disabled and that she continued to be an active employee after

she was injured. Compl. ¶ 6-7. She thus has failed to plead an

essential element of a wrongful discharge claim. Accordingly,

Wal-Mart’s motion to dismiss Count III is granted.

IV. CONCLUSION

For the reasons described above, Wal-Mart’s motion to

dismiss (Doc. No. 6) is granted. Perrotti may seek leave to 

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 9 of 10
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amend her complaint within 10 days to state a claim upon which

relief can be granted.

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

January 19, 2006

cc: Paul Cox, Esq.

John M. Clothier, Esq.

Christopher Hedican, Esq.

David W. McGrath, Esq.

Case 1:05-cv-00243-PB Document 19 Filed 01/19/06 Page 10 of 10