Cabacoff v. Federal Express Corporation-Ground

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Cabacoff
v. Civ. No. 23-cv-84-LM
FedEx Ground Package Sys., Inc.
REPORT AND RECOMMENDATION
Plaintiff Robert Cabacoff has sued his former employer,
FedEx Ground Package System, Inc. (“FedEx”), claiming he was
wrongfully fired from his job after requesting time off to
recover from a non work-related injury. Before the court is the
defendant’s motion to dismiss for failure to state a claim upon
which relief can be granted (Doc. No. 7), to which the plaintiff
has timely objected, (Doc. No. 9). See Fed. R. Civ. P.
12(b)(6). The parties have also exchanged a reply (Doc. No. 10)
and surreply (Doc. No. 11). Pursuant to LR 72.1, the motion has
been referred to the undersigned Magistrate Judge for a report
and recommendation. For the reasons that follow, the district
judge should grant the defendant’s motion in part and deny it in
part.
Standard of Review
When evaluating a motion to dismiss for failure to state a
claim under Rule 12(b)(6), the court asks whether the plaintiff
has made allegations in his pleadings that are sufficient to
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render his entitlement to relief plausible. See Manning v.
Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). The
court accepts all well-pleaded facts as true and draws all
reasonable inferences in the non-moving party's favor. Hamann v.
Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). The court, however,
disregards conclusory allegations that simply parrot the
applicable legal standard. Manning, 725 F.3d at 43. In addition
to the allegations in the complaint, the court may also consider
judicially noticed documents, matters of public record, and
documents attached to the complaint, without converting this
12(b)(6) motion into a motion for summary judgment. See
Breiding v. Eversource Energy, 939 F.3d 47, 49 (1st Cir. 2019);
Greene v. Rhode Island, 398 F.3d 45, 49 (1st Cir. 2005).
Background
Mr. Cabacoff worked for FedEx Ground as a package handler
from October 2021 until his termination in July 2022. Compl.
(Doc. No. 1-1) ¶¶ 2, 11. On July 1, 2021, he sustained an
“unusual injury during a gym workout.” Id. ¶ 4. Beginning on
or about July 3, 2022, the injury required Mr. Cabacoff to stay
at home and miss work. Id. ¶ 5. While he recuperated, Mr.
Cabacoff reported his work absences to FedEx Ground through a
“personnel/electronic e-mailing” system on a daily or near-daily
basis starting July 3, 2022 and continuing for nearly 30 days.
Id. ¶ 6. Mr. Cabacoff included in his report progress and
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estimates of recovery time, as well as indicating his desire to
return to work. Id. ¶¶ 7-8.
His recovery having stalled near the end of July 2022, Mr.
Cabacoff attempted to send another update to FedEx, only to
discover that his email access had been disabled. Id. ¶ 10. On
either the same day or the next, Mr. Cabacoff was informed that
his employment with FedEx had been terminated on July 13, 2022,
due to job abandonment. Id. ¶ 11.
Following his termination, Mr. Cabacoff requested to review
his personnel file. FedEx Ground granted this request on August
16, 2022. Id. ¶¶ 12, 14. Mr. Cabacoff, however, alleges he was
shown a “stripped-down” version of his file, which was missing
items he believed critical to understanding his termination. Id.
¶ 15.
On December 22, 2022, Mr. Cabacoff, proceeding pro se,
filed a four-count complaint in state court. FedEx timely
removed the case to this court pursuant to 28 U.S.C. § 1332.
The complaint contains four claims: (I) violation of the New
Hampshire Access to Personnel File statute (N.H. Rev. Stat. Ann.
(“RSA”) § 275:56); (II) breach of RSA § 304-C-111 (good faith
and fair dealing); (III) wrongful termination; and (IV)
negligent infliction of emotional distress. He seeks $313,000
in damages and an order “permanently enjoining [FedEx and]
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colluders . . . from continued violation of [his] judicial
rights . . . .” Compl. (Doc. No. 1-1) at 11.
Discussion
A. Count I - Access to Personnel Files
Mr. Cabacoff claims that FedEx violated RSA 275:56 by
“gutting his personnel file.” Subject to exceptions not at
issue here, RSA 275:56 requires employers to provide “a
reasonable opportunity for any employee who so requests to
inspect such employee's personnel file and further, upon
request, provide such employee with a copy of all or part of
such file.” The term “personnel file” as used in the statute is
further defined in New Hampshire’s administrative code as:
any personnel records created and maintained by an
employer and pertaining to an employee including and
not limited to employment applications, internal
evaluations, disciplinary documentation, payroll
records, injury reports and performance assessments,
whether maintained in one or more locations, unless
such records are exempt from disclosure under RSA
275:56, III or are otherwise privileged or
confidential by law. The term does not include
recommendations, peer evaluations or notes not
generated or created by the employer.”
N.H. Code. Admin. R. Lab. § 802.08.
FedEx first argues that Count I should be dismissed because
there is no private right of action for violation of RSA 275:56.
To the extent that FedEx is referring to an action for damages,
it is correct. See Dolan v. SunGard Sec. Fin., LLC, Civ. No. 06-
cv-43-JD, 2008 WL 1843895, at *2 (D.N.H. Apr. 23, 2008) (“RSA
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275:56 does not explicitly provide a private cause of action for
damages, and no New Hampshire cases have interpreted the statute
to do so.“). At the same time, however, “current and former
employees can enforce their right under the statute to inspect
and obtain a copy of their files . . . .” Dolan, 2008 WL 90019,
at *14 (D.N.H. Jan. 8, 2008). Indeed, the New Hampshire Supreme
Court has, on several occasions addressed disputes centered on
RSA 275:56. See, e.g., Pivero v. Largy, 722 A.2d 461 (N.H.
1998), overruling on other grounds recognized in Provenza v.
Town of Canaan, 281 A.3d 965, 973 (N.H. 2022); Rix v.
Kinderworks Corp., 618 A.2d 833 (N.H. 1992).
FedEx further notes that Mr. Cabacoff concedes in his
complaint that he was granted access to his file, as the statute
requires. Where, as here, he takes issue with the contents of
the file he was permitted to examine, FedEx argues that his
relief is limited to the procedures outlined in RSA 275:56(II),
wherein the employee can “submit a written statement” that must
be maintained with his file.
Construing his pro se complaint broadly, as it must do at
this stage of the litigation, the court finds that Mr. Cabacoff
has alleged sufficient facts to proceed under RSA 275:56, but
only to the extent he claims that FedEx did not “provide [him]
with a copy of all or part of” his personnel file, as required
by RSA 275:56(I). Therefore, the motion to dismiss Count I is
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granted insofar as Mr. Cabacoff seeks damages for violation of
RSA 275:56, and denied to the extent he is seeking a copy of his
file.1
B. Count II – Implied Covenant of Good Faith and Fair Dealing
In Count II, Mr. Cabacoff claims that his termination
violated RSA 304-C-111, part of New Hampshire’s Revised Limited
Liability Company Act. See RSA 304-C:1, et seq. Mr. Cabacoff
does not dispute that FedEx is not a limited liability company.
Therefore, RSA 304-C does not apply to FedEx. Moreover, as the
elements of a claim brought by an at-will employee for breach of
the common law covenant of good faith and fair dealing are the
same as for a common law claim of wrongful termination, Counts
II and III are duplicative. See Kertanis v. Georgia-Pacific
Gypsum, LLC, Civ. No. 14-cv-343-JL, 2016 WL 3033706, at *7
(D.N.H. May 26, 2016). Count II should therefore be dismissed.
The court will address Mr. Cabacoff’s termination within the
context of Count III.
1FedEx also argues that Mr. Cabacoff’s email messages are
not part of his personnel file because they were not “generated
or created by” FedEx, as the administrative code requires. The
court does not reach that issue as it is not clear that Mr.
Cabacoff’s concerns are limited to his emails.
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C. Count III – Wrongful Discharge
Under New Hampshire common law, to prevail on a claim for
wrongful discharge, a plaintiff must establish three essential
elements:
(1) that h[is] employment was terminated; and
(2) that the termination of h[is] employment was
motivated by bad faith, retaliation, or malice; and
(3) that h[is] employment was terminated because [he]
performed an act that public policy would encourage or
because [he] refused to do something that public
policy would condemn.
Donovan v. Southern New Hampshire Univ., 293 A.3d 1175, 1178
(N.H. 2022).
FedEx argues that Mr. Cabacoff’s complaint fails to allege
sufficient facts to satisfy the second and third elements. The
court agrees. As to the second element, while Mr. Cabacoff
contests whether he “abandoned” his job, given his attempts at
keeping FedEx abreast of his recovery, the circumstances he
describes evince, at most, a breakdown in communication, rather
than bad faith, retaliation or malice. For example, Mr.
Cabacoff faults FedEx “for selecting only one method of
determining [his] daily attendance status,” and failing to
explore “other key absentee certifications,” such as telephone
calls, text messages or personal emails.” Complaint (Doc. 1-1)
¶¶ 24-27. Ultimately, Mr. Cabacoff describes the chain of
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events as “mangled joint communications,” id. ¶ 29, and
“administrative neglect.” Id. ¶ 31.
Although his objection to FedEx’s motion is short on legal
argument, in his complaint, Mr. Cabacoff asserts that the
alleged “administrative neglect” is sufficient to satisfy the
“bad faith, retaliation, or malice” requirement of a wrongful
discharge claim. Id. He cites the following definition of bad
faith: “neglect or refusal to fulfill some duty or some
contractual obligation, not prompted by an honest mistake as to
one’s rights or duties, but by some interested or sinister
motive.” Id. ¶ 20 (citing Black’s Law Dictionary). Mr.
Cabacoff, however, focusses only on the word “neglect,” while
ignoring the remainder of the definition, which includes
“neglect” within the ambit of “bad faith” only if it is “not
prompted by an honest mistake,” but “by some interested or
sinister motive.” Id. Here, Mr. Cabacoff has failed to allege
any sort of sinister motive that would allow his claim of
“administrative neglect” to satisfy the “bad faith” prong of his
wrongful discharge claim.
Even if Mr. Cabacoff had alleged facts sufficient to
support a claim of bad faith or malice, he has nevertheless
failed to allege facts sufficient to satisfy the requirement
that he was discharged because he “performed an act that public
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policy would encourage or because [he] refused to do something
that public policy would condemn.” Donovan, 293 A.3d at 1178.2
Public policy in the context of a wrongful discharge claim
“can be based on statutory or nonstatutory policy.” Karch v.
BayBank FSB, 794 A.2d 763, 775 (N.H. 2002) (quoting Cilley v.
N.H. Ball Bearings, Inc., 514 A.2d 818, 821 (N.H. 1986)).
Ordinarily, whether a public policy exists is a question for the
jury. Short v. School Admin. Unit 16, 612 A.2d 364, 370 (N.H.
1992). But if the presence or absence of such a public policy
is clear, the court may rule on its existence as a matter of law
. . . .” Id.
Mr. Cabacoff not only fails to assert a public policy in
support of his claim, he concedes that he was unable to find any
case with a similar fact pattern in which a public policy was
delineated. See Pltf. Mem. (Doc. No. 9-1) at 8 (describing
claim as “unique [and] potentially precedential decision making
. . . while benefitting . . . future litigations consisting of
similar or identical elements.”). As Judge McAuliffe recently
2FedEx argues that “terminating an at-will employee who
fails to report for work . . . is not a violation of public
policy.” Def. Mem. (Doc. No. 7-1) at 11. This argument misses
the mark, as the “public policy” element of a wrongful
termination claim is rooted in the acts of the employee. See,
e.g., Faulkner v. Dartmouth Hitchcock Med. Ctr., No. 12-cv-482-
SM, 2015 WL 4759425, at *8 (D.N.H. Aug. 12, 2015) (noting that
“a common law claim for wrongful termination focuses on conduct
in which the plaintiff engaged (or refused to engage)).
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observed, a plaintiff “must articulate the precise public policy
she believes would be advanced” by her act and “identify the
source of that policy.” Netska v. Hubbell, Inc., No. 22-cv-265-
SM, 2023 WL 199340, at *4 (D.N.H. Jan. 17, 2023). “Simply
positing that it is conceivable that undefined public policy is
promoted” by a plaintiff’s act is insufficient. Id. So it is
here. Mr. Cabacoff’s failure to identify a public policy
supportive of his acts leading up to his termination is fatal to
his wrongful termination claim.
Moreover, to the extent that Mr. Cabacoff takes issue with
the methods by which FedEx enforced its attendance policies,
such an assertion cannot support a wrongful termination claim.
See e.g., MacKenzie v. Linehan, 969 A.2d 385, 390 (N.H. 2009)
(“Public policy does not protect “an employee's expression of
disagreement with a management decision.”) (quoting Short, 612
A.2d at 370. Finally, Mr. Cabacoff’s attempt to link his
personnel file dispute to his wrongful termination claim is
unavailing, as his complaint makes clear that his termination
preceded his file request. Thus his termination could not have
been in retaliation for his request, even if his request was
supported by New Hampshire law. Accordingly, the court should
dismiss Count III, alleging wrongful termination.
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D. Negligent Infliction of Emotional Distress
In Count IV, Mr. Cabacoff asserts a claim of negligent
infliction of emotion distress. In order to avoid dismissal
under Rule 12(b)(6) a plaintiff must allege: “(1) causal
negligence of the defendant; (2) foreseeability; and (3) serious
mental and emotional harm accompanied by objective physical
symptoms.” Tessier v. Rockefeller, 33 A.3d 1118, 1132 (N.H.
2011) (quoting O’Donnell v HCA Health Servs. of N.H., 883 A.2d
319, 324 (N.H. 2005)).
The court need not reach the question of whether Mr.
Cabacoff’s complaint alleges facts sufficient to support this
claim, however, because it is barred by the exclusivity
provisions of New Hampshire's Worker's Compensation Act, RSA
281-A:8. See Karch, 794 A.2d at 770 (“As a general rule, any
claim based upon negligence by an employer or co-employee for
personal injuries arising out of or in the course of employment
is barred by RSA 281–A:8, I(b).” Accordingly, Count IV should
be dismissed.
Conclusion
Based on the foregoing, the district judge should deny
defendant’s motion to dismiss (Doc. No. 7), but only to the
extent that Count I alleges that Mr. Cabacoff was not provided
with a copy of his personnel file. The motion should be granted
in all other respects.
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file any objections within the specified time waives the right
to appeal the district court's Order. See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 11, 2023
cc: Robert Cabacoff, pro se
Counsel of Record
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