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Todd v. Aggregate Industries-Northeast Region, Inc.

United States District Court, D. New Hampshire

October 27, 2015

Garrison Todd
v.
Aggregate Industries-Northeast Region, Inc. Opinion No. 2015 DNH 199

MEMORANDUM ORDER

Joseph N. Laplante United States District Judge

As is frequently the case, this wrongful termination action turns on an employer’s motivation for firing an at-will employee. In a variation on that theme, it also implicates the interplay between New Hampshire’s wrongful termination cause of action and the breach of the covenant of good faith and fair dealing. Plaintiff Garrison Todd sued his former employer, Aggregate Industries - Northeast Region, Inc., alleging that Aggregate wrongfully terminated him for filing a worker’s compensation claim. He seeks recovery under claims for both wrongful termination (Count I) and breach of the aforementioned covenant (Count II). This court has jurisdiction pursuant to 28 U.S.C. § 1332(a) (diversity) because Todd is a citizen of New Hampshire, Aggregate is a Massachusetts corporation with its principal place of business in the Commonwealth, and the amount in controversy exceeds $75, 000.

Aggregate has moved for summary judgment on the first count, arguing that it terminated Todd’s employment for legitimate business reasons and that Todd cannot demonstrate otherwise. After reviewing the parties’ submissions and hearing oral argument, the court concludes that Aggregate has not carried its burden of showing that it is entitled to judgment as a matter of law on Todd’s claim for wrongful termination, and so its motion for summary judgment must be denied.

Aggregate has also moved for judgment on the pleadings on Todd’s second count on the theory that, under New Hampshire law, Todd’s claim for breach of the covenant of good faith and fair dealing has been subsumed by his wrongful termination cause of action. To the extent that Todd alleges that the manner in which Aggregate terminated his employment breached the covenant of good faith and fair dealing as it serves to limit discretion in contractual performance, the court grants this motion and grants judgment on the pleadings in Aggregate’s favor. However, while the court tends to agree with Aggregate that New Hampshire law probably does not recognize separate causes of action for wrongful termination and breach of the covenant of good faith and fair dealing on the same facts, it is reluctant to decide as much absent a clear pronouncement from the New Hampshire Supreme Court. Thus, Aggregate’s motion for judgment on the pleadings is denied as to that issue, albeit without prejudice to revisiting it before charging the jury.

I. Applicable legal standards

When evaluating a motion for judgment on the pleadings under Rule 12(c), the court invokes essentially the same standard as a motion to dismiss under Rule 12(b)(6). See Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir. 2009). For plaintiff’s complaint to survive such a motion, he must allege facts sufficient to “state a claim to relief” by pleading “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Summary judgment, on the other hand, is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if it could reasonably be resolved in either party’s favor at trial. See Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010) (citing Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009)). A fact is “material” if it could sway the outcome under applicable law. Id. (citing Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)).

In analyzing a summary judgment motion, the court “views all facts and draws all reasonable inferences in the light most favorable to the non-moving party.” Id. Similarly, in ruling on a motion for judgment on the pleadings, the court must accept as true all well-pleaded facts set forth in the complaint and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010). In neither case need the court credit conclusory allegations or speculation. See Meuser, 564 F.3d at 515; Sea Shore Corp. v. Sullivan, 158 F.3d 51, 54 (1st Cir. 1998).

II. Background

The following factual summary adopts the approach outlined above. All inferences are drawn in Todd’s favor, as the plaintiff and non-moving party.

Todd worked for Aggregate and its predecessor for 15 years. On May 7, 2013, while checking the quality of a load of concrete mix at the Portsmouth Naval Shipyard, the chute of the concrete truck struck Todd in the head. He reported the injury to his superiors. An ambulance took him to the emergency room, where he was met by Allister Melvin, Aggregate’s Technical Services Manager, and Cary Williams, one of Aggregate’s Health and Safety officers. There, Dr. William Carter acknowledged his reported headache and neck pain, diagnosed him with a closed head injury and cervical strain, and cleared him to return to work as long as he was given light duty for the next two days.

After two days of desk work at Aggregate’s office in Raymond, New Hampshire, Todd told Melvin that he still felt neck stiffness and had pain. Melvin encouraged him, and he agreed, that he would continue on restricted duty the next day (Friday) and reevaluate his condition after the weekend. Still not feeling better on Monday, Todd asked for a second doctor visit, which Aggregate arranged with Dr. Geoffrey Shreck at Access Sports Medicine & Orthopedics. Melvin accompanied Todd to the appointment. Dr. Shreck noted Todd’s complaints of “[n]eck stress & headache; difficulty concentrating” and, like Dr. Carter, diagnosed him with a concussion and cervical strain. Though the parties dispute the extent of Dr. Shreck’s instructions, he at least prescribed a week of rest without heavy activity, using the computer, or watching television, as well as fish oil, painkillers, and hot and cold packs. Dr. Shreck gave Todd a copy of a Worker’s Compensation Medical Form. Melvin also forwarded a copy of that form to Williams.

On Dr. Shreck’s orders, Todd did not return to work during the week of May 13 through May 17, 2013. He also rested without using the computer or watching television. By his own admission, Todd felt a little better that week and so did some work around the house and yard, carried a power washer, rotated the tires on his jeep, checked the lug nuts on the rear tire of his wife’s car, and pulled a trailer from behind his garage to the front of the house. Allegedly concerned by the lack of any “apparent explanation for the significant degrading of [his] medical condition” requiring Todd to stay home from work that week, Aggregate’s third-party administrator for workers’ compensation, Gallagher Bassett Services, hired a private surveillance company to surveil Todd on Aggregate’s behalf. Aggregate’s private investigator observed Todd engaging in these activities and submitted a report to Aggregate.

Todd attended a follow-up appointment with Dr. Shreck on Monday, May 20, and again complained of neck soreness. Dr. Shreck again prescribed painkillers, fish oil, ice, and hot packs. He cleared Todd to return to work for four hours a day, five days a week, with “rest as needed if symptoms increase, ” and the restrictions that he should only occasionally bend, kneel, squat, climb, or drive, should avoid ladders, and should not lift or carry more than 10 pounds. After this appointment, Todd again returned to Aggregate’s Raymond office on restricted duty. Aggregate continued to investigate Todd, assigning a “nurse case manager” to follow his medical status and continuing surveillance of Todd’s activities.

Todd saw Dr. Shreck again on May 28 and Dr. Kevin Heaten, a concussion specialist at the same clinic, the next day. At those appointments, Todd continued to complain about continuing headaches, nausea, balance problems, vertigo, and problems concentrating.

On May 30, 2013, Gallagher Bassett denied Todd’s worker’s compensation claim on the grounds that (1) Todd was not an Aggregate employee[1] and (2) Todd’s injury was not caused by his employment. Gallagher Basset further explained that “surveillance video obtained of employee does not depict [Todd] being disabled[.]” The next day, Aggregate suspended Todd pending the outcome of further investigation. On June 5, 2013, Todd’s physician released him to full-time light work with some limitations.

Aggregate terminated Todd’s employment on June 18, 2013. In the termination letter, Aggregate explained:

Aggregate Industries - Northeast Region, Inc. (the “Company”) has conducted an investigation of your recent Worker’s Compensation claim arising out of a workplace incident you reported on May 7, 2013. The investigation included a review of your medical records in addition to continuing video surveillance of your post-incident activities. The Company has determined that there is a significant discrepancy between the medical condition you conveyed to your physicians, the prescribed medical response to the condition you alleged, and your physical condition observed under surveillance. As a result of these findings, the Company has determined to terminate your employment effective June 3, 2013 . . . .

A few days later, on June 17, Dr. Heaton saw Todd again and released Todd back to full-time work with only some ...


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