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

After losing his job at Dell, Inc., William Schomburg filed

a charge with the Equal Employment Opportunity Commission

(“EEOC”) and brought suit, alleging claims under the Family and

Medical Leave Act, Title I of the Americans with Disabilities Act

(“ADA”), and state law. Dell moves to dismiss the ADA claim on

the ground that Schomburg has not exhausted his administrative

remedies and moves to dismiss the state law claims as preempted

by the ADA and as barred under the Workers’ Compensation Law. 

Schomburg objects to the motion to dismiss.

I. ADA Claim

Before a plaintiff may bring a claim under Title I of the

ADA, he must first exhaust available administrative remedies. 

Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st

Cir. 1999). “Exhaustion has two key components: the timely

filing of a charge with the EEOC and the receipt of a right-tosue letter from the agency.” Jorge v. Rumsfeld, 404 F.3d 556,

Case 1:06-cv-00177-JD Document 9 Filed 08/22/06 Page 1 of 5
1Had Schomburg notified the court that he had received a

right-to-sue letter following commencement of this action, his

failure to first exhaust administrative remedies might have been

excused because the requirement is obligatory but not

jurisdictional. Bonilla, 194 F.3d at 278.

2

564 (1st Cir. 2005). An unexcused failure to exhaust “bars the

courthouse door.” Bonilla, 194 F.3d at 278.

Schomburg represents that he filed a charge with the EEOC

and that the EEOC proceeding is ongoing. He represents that the

EEOC scheduled a mediation in his case for July 20, 2006, and

that if mediation were unsuccessful, the EEOC would then issue

him a right-to-sue letter. Schomburg has not notified the court

as to the outcome of the mediation or filed a right-to-sue letter

from the EEOC. Given his unexcused failure to exhaust the

required administrative remedies, Schomburg’s ADA claim is

dismissed without prejudice to refile after completing the

administrative process.1

II. Preemption

Dell argues that Schomburg’s three state law claims should

be dismissed because “they represent statutory claims brought

under the ADA and/or FMLA.” Dell further argues that the state

law claims are duplicative of the federal claims and asserts a

preemption theory under state law. In response, Schomburg cites

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the provision from Title VII, 42 U.S.C. § 2000e-7, pertaining to

the application of state law in cases under that law.

As a beginning point, § 2000e-7 does not apply here where

the federal claims are brought under the ADA and the FMLA, not

Title VII. The ADA, however, provides:

Nothing in this chapter shall be construed to

invalidate or limit the remedies, rights, and

procedures of any Federal law or law of any State or

political subdivision of any State or jurisdiction that

provides greater or equal protection for the rights of

individuals with disabilities than are afforded by this

chapter.

42 U.S.C. § 12201(b). The FMLA provides: “Nothing in this Act

or any amendment made by this Act shall be construed to supersede

any provision of any State or local law that provides greater

family or medical leave rights than the rights established under

this Act or any amendment made by this Act.” 29 U.S.C. § 2651.

Neither Dell nor Schomburg addressed those provisions.

In addition, Dell makes only a general preemption argument

supported by cases holding that federal statutes preempt state

law claims of wrongful termination based on the same prohibited

conduct. Schomburg has not alleged a wrongful termination claim. 

Therefore, the preemption argument is not sufficiently developed

to support Dell’s motion.

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III. Workers’ Compensation Law

Dell also moves to dismiss Schomburg’s claim of negligent

infliction of emotional distress as barred by the exclusivity

provision of New Hampshire’s Workers’ Compensation law. See RSA

281-A:8. To prove that Schomburg’s claim is barred, Dell must

show: 

(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) 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.

Harrington v. Brooks Drugs, Inc., 148 N.H. 101, 105 (2002). As

Schomburg points out, the New Hampshire Supreme Court has held

that compensation for emotional distress caused by an employer

but occurring after the employee’s termination from employment is

not barred by the Workers’ Compensation Law. Porter v. City of

Manchester, 151 N.H. 30, 44 (2004). 

Dell has not shown that Schomburg’s emotion distress claim

is barred by the Workers’ Compensation Law.

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Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document no. 5) is granted as to the plaintiff’s ADA claim in

Count II, which is dismissed without prejudice, but is otherwise

denied.

 SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 22, 2006

cc: John E. Friberg, Jr., Esquire

Bradley M. Lown, Esquire

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