UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

William Schomburg

v. Civil No. 06-cv-177-JD

Dell, Inc.

O R D E R

William Schomburg brings federal claims under the Americans

with Disabilities Act (“ADA”) and the Family Medical Leave Act

(“FMLA”) and state law claims of breach of contract,

misrepresentation, wrongful discharge, and negligent infliction

of emotional distress. Dell moved to dismiss Schomburg’s claim

under the ADA because Schomburg had not exhausted administrative

remedies at that time and moved to dismiss his state law claims

“as an improper attempt to utilize common law causes of action

relative to claims for which comprehensive statutory redress is

available.” Def. Mem. at 1 (document no. 5). The court granted

Dell’s motion as to Schomburg’s ADA claim but denied the motion

as to the state law claims. Dell moves for reconsideration of

the denial of the motion as to the state law claims. Schomburg

objects to Dell’s motion.

Case 1:06-cv-00177-JD Document 18 Filed 10/04/06 Page 1 of 6
1The court acknowledges that it previously overlooked

Schomburg’s wrongful discharge claim.

2

Discussion

“[A] motion for reconsideration is appropriate where the

court has misapprehended the facts, a party’s position, or the

controlling law.” Servants of the Paraclete v. Does, 204 F.3d

1005, 1012 (1st Cir. 2000). “A motion for reconsideration . . .

does not allow a party to introduce new evidence or advance

arguments that could and should have been presented to the

district court prior to the [decision].” Marks 3 Zet-Ernst Marks

GmBh & Co. KG v. Presstek, Inc., 455 F.3d 7, 15 (1st Cir. 2006). 

In its motion to dismiss, Dell argued that Schomburg’s state

law claims, breach of contract, misrepresentation, wrongful

discharge, and negligent infliction of emotional distress, were

really claims under the ADA or FMLA.1 Citing Wenners v. Great

St. Beverages, Inc., 140 N.H. 100, 103 (1995), and Howard v. Dorr

Woolen Co., 120 N.H. 295, 297-98 (1980), Dell asserted that the

common law claims were not actionable because the statutory

causes of action under the ADA and FMLA had replaced them. The

court denied that part of Dell’s motion, noting the savings

clauses in the ADA and the FMLA, which neither party had cited,

and concluding that Dell’s preemption argument was not

sufficiently developed.

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Dell moves for reconsideration, arguing again that

Schomburg’s state law claims are preempted by the ADA and the

FMLA and relying on the same cases in support of its argument. 

Although Dell presents its argument as preemption, it raises two

separate issues, neither of which was adequately developed in the

motion to dismiss or for purposes of reconsideration.

A. Wrongful Discharge 

To state a claim for wrongful discharge under New Hampshire

law a plaintiff must allege: “(1) the termination of employment

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

she was terminated for performing an act that public policy would

encourage or for refusing to do something that public policy

would condemn.” Wenners v. Great State Beverages, 140 N.H. 100,

103, 663 A.2d 623 (1995); accord Porter v. City of Manchester,

151 N.H. 30, 37-39 (2004) (providing history of wrongful

discharge cause of action). The second element “must focus on

the acts of the employee and on their relationship to public

policy, not on the mere articulation of a public policy by the

employee.” Frechette v. Wal-Mart Stores, Inc., 925 F. Supp. 95,

98 (D.N.H. 1995). A condition that is protected by public

policy, such as sickness, disability, and age, as distinguished

from acts by the employee that are protected by public policy,

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2Decisions of this court have at times broadly suggested,

based on Smith v. F.W. Morse & Co., 76 F.3d 413 (1st Cir. 1996), 

and Howard v. Dorr Woolen Co., 120 N.H. 295 (1980), that no

policy based on a statute that provides a remedy for the same

injury may be used to support a wrongful termination claim. See,

e.g., Weeden v. Sears Roebuck & Co., 1999 1209494 at *3 (D.N.H.

May 25, 1999). As Bliss v. Stow Mills, Inc., 146 N.H. 550, 553-

54 (2001), which was decided after Howard and Smith, makes plain,

however, the availability of a statutory remedy alone does not

bar a wrongful discharge claim based on that statute’s policy.

4

does not satisfy the second element of a wrongful discharge

claim.2 See Howard v. Dorr Woolen Co., 120 N.H. 295, 297 (1980);

see also Parker B. Potter, Jr., Revisiting the Scrap Heap: The

Decline and Fall of Smith v. F.W. Morse & Co., 4 Pierce Law

Review 481, 486 (2006). 

Schomburg’s wrongful discharge claim merely articulates the

legal elements of the claim, leaving Dell and the court to guess

at what factual basis he intended to support the claim. His

general factual allegations suggest that he alleges his

employment was terminated because he took leave under the FMLA. 

Reliance on the FMLA, as an expression of public policy that

would support his actions, does not bar Schomburg’s wrongful

discharge claim. On the other hand, to the extent Schomburg

alleges he was terminated based on a disability or illness, he

fails to state that claim. See Howard, 120 N.H. at 297. Because

it is not “beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to

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relief,’” the wrongful discharge claim cannot be dismissed. 

McLaughlin v. Boston Harbor Cruise Lines, Inc., 419 F.3d 47, 50

(1st Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 46

(1957)).

B. Preemption

Dell also argues again that Schomburg’s claims of breach of

contract, misrepresentation, wrongful discharge, and negligent

infliction of emotional distress are preempted by the remedies

provided under the ADA and the FMLA. As the court stated in the

previous order, however, Dell has not sufficiently presented its

preemption theory, and, in particular, has not addressed the

savings clauses in those acts. See, e.g., Liberty Cablevision of

P.R., Inc. v. Mun. of Caquas, 417 F.3d 216, 220 (1st Cir. 2005)

(discussing federal preemption of state law); Eiden v. Home Depot

USA, Inc., 2006 WL 1490418 at *8 (E.D. Cal. May 26, 2006)

(holding “it is clear that the [ADA] does not preempt state law

where the state law provides ‘greater or equal protection.’”

citing 42 U.S.C. § 12201(b)); Nielsen v. New Cingular Wireless

PCS, LLC, 2006 WL 240550 at *4 (D. Or. Jan. 31, 2006) (wrongful

discharge claim not preempted by FMLA).

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Conclusion

For the foregoing reasons, the defendant’s motion for

reconsideration (document no. 9) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 4, 2006

cc: John E. Friberg, Jr., Esquire

Bradley M. Lown, Esquire

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