UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Richard Parker,

Plaintiff

v. Civil No. 05-cv-380-SM

Opinion No. 2006 DNH 070

MVM, Inc.,

Defendant

O R D E R

Plaintiff, Richard Parker, brings this action against his

former employer, MVM, Inc., claiming it unlawfully terminated his

employment. In his complaint, Parker advances common law claims

for wrongful termination and breach of contract, as well as state

and federal statutory claims for age discrimination. MVM moves

to dismiss the common law wrongful termination claim, asserting

that because it is founded on Parker’s assertion that he was

discharged because of his age, it is preempted by the state and

federal statutes prohibiting age discrimination. Parker objects. 

Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “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

Case 1:05-cv-00380-SM Document 19 Filed 06/20/06 Page 1 of 7
2

complaint, so read, sets forth facts sufficient to justify

recovery on any cognizable theory.” Martin v. Applied Cellular

Tech., Inc., 284 F.3d 1, 6 (1st Cir. 2002). Dismissal is

appropriate only if “it clearly appears, according to the facts

alleged, that the plaintiff cannot recover on any viable theory.” 

Langadinos v. American Airlines, Inc., 199 F.3d 68, 69 (1st Cir.

2000). See also Gorski v. N.H. Dep’t of Corr., 290 F.3d 466, 472

(1st Cir. 2002) (“The issue presently before us, however, is not

what the plaintiff is required ultimately to prove in order to

prevail on her claim, but rather what she is required to plead in

order to be permitted to develop her case for eventual

adjudication on the merits.”) (emphasis in original). 

Notwithstanding this deferential standard of review,

however, the court need not accept as true a plaintiff’s “bald

assertions” or conclusions of law. See Resolution Trust Corp. v.

Driscoll, 985 F.2d 44, 48 (1st Cir. 1993) (“Factual allegations

in a complaint are assumed to be true when a court is passing

upon a motion to dismiss, but this tolerance does not extend to

legal conclusions or to bald assertions.”) (citations omitted). 

See also Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.

1987). 

Case 1:05-cv-00380-SM Document 19 Filed 06/20/06 Page 2 of 7
3

Background

After reaching age 62, Parker spoke with representatives of

MVM about reducing his employment from full-time to part-time, so

he might begin receiving Social Security benefits without

incurring tax penalties. Eventually that request was honored

and, although he retained the title “Quality Assurance Manager”

and received the same hourly rate of pay, his work schedule was

reduced to only 11 hours per week. Soon thereafter, however, he

was told that his position was erroneously converted to parttime. But, rather than simply reinstating him to his prior fulltime position (an option Parker says he both welcomed and 

communicated to MVM), MVM transferred Parker to another job and

filled his former position with a younger employee. Parker

understandably viewed the transfer as a demotion. 

In count one of his amended complaint (document no. 9),

Parker asserts that he was constructively discharged when MVM

demoted “him to a position for which he was grossly

overqualified, ill-suited and in which he would be supervised by

younger, less experienced personnel, including one who had been

his subordinate.” Id. at para. 31. He goes on to say:

MVM’s employment action against Parker was not

motivated by business necessity but rather by malice

Case 1:05-cv-00380-SM Document 19 Filed 06/20/06 Page 3 of 7
4

and personal animus, predicated on the view that he

would ultimately feel he had no choice but to resign

rather than continue working under circumstances that

MVM knew would be demeaning and intolerable. 

Parker was punished for seeking to continue to perform

a job he was deeply committed to while obtaining

reasonable accommodation from his employer for agerelated limitations. 

Considering the advancing average age of the American

worker and economic pressures extending the age at

which workers like Parker can reasonably expect to be

able to retire, there is a sound public policy basis to

hold MVM legally accountable for its wrongful actions

against Parker. 

Id. at paras. 32-34 (emphasis supplied). 

Discussion

To state a viable claim for wrongful discharge under New

Hampshire’s common law, a plaintiff must allege two things: 

one, that the employer terminated the employment out of

bad faith, malice, or retaliation; and two, that the

employer terminated the employment because the employee

performed acts which public policy would encourage or

because he refused to perform acts which public policy

would condemn. 

Short v. Sch. Admin. Unit No. 16, 136 N.H. 76, 84 (1992) (citing

Cloutier v. A & P Tea Co., 121 N.H. 915, 921-22 (1981)) (emphasis

supplied). See also Monge v. Beebe Rubber Co., 114 N.H. 130

Case 1:05-cv-00380-SM Document 19 Filed 06/20/06 Page 4 of 7
5

(1974). Count one of Parker’s complaint fails to state a viable

cause of action for wrongful discharge for at least two reasons. 

First, and most notably, while he certainly alleges that his

former employer acted out of bad faith and/or malice, Parker

fails to allege that he was discharged because he engaged in

conduct which public policy would encourage or because he refused

to engage in conduct which public policy would condemn. Instead,

he says MVM terminated his employment because of his age. The

New Hampshire Supreme Court has expressly held that the common

law cause of action for wrongful termination is not the proper

vehicle by which to seek redress for alleged age discrimination. 

We construe Monge to apply only to a situation where an

employee is discharged because he performed an act that

public policy would encourage, or refused to do that

which public policy would condemn. A discharge due to

sickness does not fall within this category, and is

generally remedied by medical insurance or disability

provisions in an employment contract. Nor does

discharge because of age fall within this narrow

category. The proper remedy for an action for unlawful

age discrimination is provided for by statute. 

Howard v. Dorr Woolen Co., 120 N.H. 295, 298 (1980) (citations

omitted) (emphasis supplied). 

Case 1:05-cv-00380-SM Document 19 Filed 06/20/06 Page 5 of 7
6

Nowhere in his complaint does Parker allege that his

constructive termination was the result of his having engaged (or

having refused to engage) in any particular conduct with public

policy implications. He claims he was demoted because of his

age. Under those circumstances, he cannot pursue a common law

claim for wrongful discharge. As the New Hampshire Supreme Court

has made clear, the common law cause of action for wrongful

discharge is not the proper means by which to remedy a discharge

that was motivated by someone’s status or physical condition. 

Instead, that cause of action is properly invoked only when an

employee is discharged in response to his or her having engaged

in a “narrow category” of conduct. Howard, 120 N.H. at 297. 

Moreover, the Court of Appeals for the First Circuit has

interpreted New Hampshire common law to preclude a cause of

action for wrongful termination when the aggrieved employee has a

statutory cause of action arising out of the same conduct.

Title VII not only codifies the public policy against

gender-based discrimination (including, but not limited

to, pregnancy discrimination) but also creates a

private right of action to remedy violations of that

policy and limns a mature procedure for pursuing such

an action. Under Wenners [v. Great State Beverages,

Inc., 140 N.H. 100 (1995)], the existence of such a

remedy precludes the appellant, in the circumstances of

this case, from asserting a common law claim for

wrongful discharge. 

Case 1:05-cv-00380-SM Document 19 Filed 06/20/06 Page 6 of 7
7

Smith v. F.W. Morse & Co., 76 F.3d 413, 429 (1996) (emphasis

supplied). 

The Smith decision remains binding precedent in this

circuit. So, since Parker asserts that his employment was

terminated because of his age and since both state and federal

statutes specifically provide a remedy for age discrimination, he

cannot, as a matter of law, pursue a common law claim for

wrongful discharge arising out of alleged age discrimination. 

Conclusion

For the foregoing reasons, Parker’s amended complaint fails

to state a viable claim for wrongful termination under the common

law of New Hampshire. Accordingly, defendant’s motion to dismiss

count one of plaintiff’s amended complaint (document no. 12) is

granted. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 20, 2006

cc: Glen A. Perlow, Esq.

David W. McGrath, Esq.

Christopher Cole, Esq.

Case 1:05-cv-00380-SM Document 19 Filed 06/20/06 Page 7 of 7