Rodriguez v. Khanal et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Orlando Rodriguez
v. 	Civil No. 18-cv-508-SM
Rustic Crust, et al.
REPORT AND RECOMMENDATION
Pro se plaintiff Orlando Rodriguez filed this action in
forma pauperis, asserting several claims against his former
employer and several former co-employees related to his firing.
His complaint is before this court for preliminary review,
pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like Rodriguez’s, which are filed in forma pauperis.
See LR 4.3(d). 	The magistrate judge may recommend to the
district judge that one or more claims be dismissed if, among
other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
the court construes pro se complaints liberally. 	See Erickson
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 1 of 10

2
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	The court treats as true all
well-pleaded factual allegations, and construes reasonable
inferences in plaintiff’s favor. 	See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Background1
In February 2018, Rustic Crust, a company that makes and
supplies pizza crusts and sauces to supermarkets, hired
Rodriguez as a production supervisor, with an annual salary of
$60,000. 	He was terminated on April 24, 2018, after roughly ten
weeks of employment.
Rodriguez alleges that at the time of his hire, employees
under his authority needed training to control overtime, reduce
risk, and increase production quality. 	He further claims that
the plant manager, defendant Dan Muskat, told him to “soften”
his efforts at employee discipline, especially as it related to
defendant Deo Khanal, a “line leader” and assistant supervisor.
Muskat’s directive, in Rodriguez’s view, stemmed from the fact
1 The facts recited in this section are drawn from the Complaint
and various documents attached thereto. See Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 72 (1st Cir. 2014).
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 2 of 10

3
that Khanal did not respond well to criticism and that many
other employees who shared Khanal’s ethnic and cultural
background2 would respond negatively to criticism of Khanal.
According to Rodriguez, African American and white employees
were better workers than Khanal and other employees of his
ethnic and cultural background, but were treated poorly by
Khanal without any response from Rustic Crust management,
including Muskat.
Defendants Muskat and human resources supervisor Kathleen
Hammel informed Rodriguez of his termination when he arrived for
work on April 24, 2018. 	The stated reason for Rodriguez’s
firing was “discrepancies in supervisory and management style”
and failure to “improve[] as discussed.” 	In response, Rodriguez
asserted that he had notified management that Khanal “treated
African American and white employees less favorably than those
related to him by culture race, language or national origin.”
Claims
Rodriguez has sued Rustic Crust, Khanal, Muskat, Hamel and
senior manager Doug Troy. 	He asserts claims against the
defendants for common law wrongful termination, tortious
interference with contractual relations, negligent and
2 Rodriguez suggests that Khanal was Indian or Nepalese.
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 3 of 10

4
intentional infliction of emotional distress, negligent
misrepresentation, and negligent hiring, retention, supervision
and training.
Discussion
I. 	Wrongful termination3
Construing the complaint liberally, the crux of Rodriguez’s
complaint is that he was fired after complaining about his
employer’s disparate treatment of employees of different races
or ethnicity. 	He has therefore pleaded sufficient facts to
support a claim for common law wrongful termination under New
Hampshire law. 	See Leeds v. BAE Sys., 165 N.H. 376, 379 (2013)
(noting that wrongful discharge claim has two elements: (1) that
the discharge was motivated by bad faith, retaliation or malice;
and (2) that the plaintiff was discharged for performing an act
that public policy would encourage or for refusing to do
something that public policy would condemn). 	By separate order,
the court will direct service of this claim on Rustic Crust. 	As
3 Although Rodriguez did not specifically enumerate a wrongful
termination claim, his factual narrative sufficiently describes
one. 	“The policy behind affording pro se plaintiffs liberal
interpretation is that if they present sufficient facts, the
court may intuit the correct cause of action, even if it was
imperfectly pled.” 	Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st
Cir. 1997).
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 4 of 10

5
set forth below, however, the court recommends dismissal of the
remainder of Rodriguez’s claims.
II. Tortious Interference with Contractual Relations
Rodriguez asserts that Khanal tortiously interfered with
his employment relationship with Rustic Crust and that Muskat
and Khanal conspired to so the same. 	To succeed on a claim for
tortious interference with contractual relations, a plaintiff
must demonstrate that “(1) the plaintiff had an economic
relationship with a third party; (2) the defendant knew of this
relationship; (3) the defendant intentionally and improperly
interfered with this relationship; and (4) the plaintiff was
damaged by such interference.” 	City of Keene v. Cleaveland, 167
N.H. 731, 738 (2015) (citation and quotation marks omitted).
However, a co-employee will not be deemed to be a third party
for purposes of a tortious interference claim if the employee
was acting within the scope of his employment when he engaged in
the conduct that gives rise to the claim. 	See Balsamo v. Univ.
Sys. of N.H., 2011 DNH 150, 15-16, 2011 WL 4566111; Attard v.
Benoit, 2007 DNH 155, 16-17, 2007 WL 4380065; see also Griffin
v. Schneider, No. 93–1253, 1993 WL 220403, at *1 (1st Cir. June
24, 1993) (“[T]he weight of authority is to the effect that a
corporate officer can ‘interfere’ with a corporation's
contracts, in a legally relevant sense, only by conduct
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 5 of 10

6
undertaken outside, or beyond the scope of, his official
capacity.”) (internal citations omitted).
Here, Rodriguez rests his claims on acts of his co-
employees that, as described, were taken within the scope of
their official employment duties. 	Accordingly, Rodriguez has
failed to state facts to support claims alleging tortious
interference with contractual relations, and the district judge
should dismiss this claim, listed as counts 1 and 2 in the
complaint.
III. 	Negligent Hiring, Retention, Supervision and Training;
Negligent Infliction of Emotional Distress
Rodriguez next asserts that Rustic Crust, Muskat, Hammel
and Troy negligently hired, retained, supervised and trained
Chanel. 	He also alleges that they, and Khanal, negligently
caused him emotional distress. 	These claims are barred by the
exclusivity provisions of New Hampshire’s Worker’s Compensation
Act, N.H. Rev. Stat. Ann. § 281-A:8, which, as a general matter,
bars “any claim based upon negligence by an employer or co-
employee for personal injuries arising out of or in the course
of employment . . . .” 	Young v. Doucette, 2018 DNH 137, 2, 2018
WL 3321435 (quoting Gascard v. Franklin Pierce Univ., 2015 DNH
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 6 of 10

7
049, 19–20, 2015 WL 1097485 (Laplante, J.) (quoting Karch v.
BayBank FSB, 147 N.H. 525, 530 (2002)).
The district judge should therefore dismiss plaintiff’s
claims for negligent hiring, retention, supervision, training
and infliction of emotional distress, listed in the complaint as
Counts 3, 4, 5, 6 and 8.
IV. Negligent Misrepresentation
Rodriguez next asserts a claim of negligent
misrepresentation against Khanal and Muskat. 	To state a cause
of action for negligent misrepresentation, a plaintiff must
allege facts sufficient to find: 1) a negligent
misrepresentation of a material fact by the defendant; and 2)
justifiable reliance by the plaintiff. 	Wyle v. Lees, 162 N.H.
406, 413 (2011). 	Negligence, in this context, is the failure of
“one who volunteers information to another not having equal
knowledge, with the intention that he [or she] will act upon it,
to exercise reasonable care to verify the truth of his [or her]
statements before making them.” 	Snierson v. Scruton, 145 N.H.
73, 78 (2000).
Here, Rodriguez does not allege that either Khanal or
Muskat made any material misrepresentations of fact to him.
Indeed, the thrust of Rodriguez’s complaint is that both were
simply bad at their jobs. 	As the facts alleged in the complaint
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 7 of 10

8
support neither element of negligent misrepresentation, the
district judge should dismiss this claim, asserted as Count 9 in
the complaint.
V. Intentional Infliction of Emotional Distress
Rodriguez claims that Khanal and Muskat are liable for
intentional infliction of emotional distress. 	In order to state
a claim for intentional infliction of emotional distress, a
plaintiff must allege that a defendant “by extreme and
outrageous conduct, intentionally or recklessly cause[d] severe
emotional distress to another.” 	Morancy v. Morancy, 134 N.H.
493, 496 (1991) (quotation omitted). “In determining whether
conduct is extreme and outrageous, it is not enough that a
person has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress,
or even that his conduct has been characterized by malice.”
Mikell v. Sch. Admin. Unit No. 33, 158 N.H. 723, 729 (2009)
(citation and quotations omitted). 	Rather, “[l]iability has
been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” 	Id.
Although, as previously indicated, Rodriguez has
sufficiently alleged that he was wrongfully terminated in
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 8 of 10

9
retaliation for complaining about the treatment of certain
employees, the complaint contains no allegations of conduct on
the part of Muskat or Khanal that could be described as
“atrocious” or “utterly intolerable.” 	Accordingly, the district
judge should dismiss this claim, asserted as Count 7.
VI. Vicarious Liability
Finally, Rodriguez asserts two counts of vicarious
liability against Rustic Crust and the individual defendants.
Vicarious liability is not a separate and distinct cause of
action. Frank v. L.L. Bean, Inc., 352 F. Supp. 2d 8, 14 (D. Me.
2005). Rather, vicarious liability is a theory of imputation by
which an employer may be held responsible for the tortious acts
of its employees. 	Id. 	As such, the district court should
dismiss these claims. 	Nevertheless, Rodriguez may still assert
his wrongful termination claim against defendant employer Rustic
Crust under a theory, if not a separate claim, of vicarious
liability.
Conclusion
For the foregoing reasons, the district judge should
dismiss counts 1 – 11 of the complaint. 	The case will proceed
on plaintiff’s wrongful termination claim, as described herein.
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 9 of 10

10
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 objection period may be extended upon
motion. Failure to file 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
December 21, 2018
cc: 	Orlando Rodriguez, pro se
Case 1:18-cv-00508-SM Document 6 Filed 12/21/18 Page 10 of 10