Cabacoff v. Federal Express Corporation-Ground

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Cabacoff
v. Civ. No. 23-cv-084-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 Mr. Cabacoff’s First Amended
Complaint (Doc. No. 18) (“FAC”) for failure to state a claim
upon which relief can be granted (Doc. No. 19), to which the
plaintiff has timely objected (Doc. No 20). See Fed. R. Civ. P.
12(b)(6). The parties have also exchanged a reply (Doc. No. 21)
and surreply (Doc. No. 22). 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.
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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
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 as a package handler from
October 2021 until his termination in July 2022. FAC (Doc. No.
18) ¶ 34. On July 3, 2022, he sustained a “self-inflicted”
injury at his gym during a gym workout.” Id. Mr. Cabacoff
“immediately” contacted the FedEx human resources department
(“HR”) through a personnel application on his phone, indicating
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his absence should be acknowledged and updates would be
forthcoming, daily, as much as possible, to the status of injury
and return to work projections. Id.
His recovery having plateaued near the end of July 2022,
Mr. Cabacoff attempted to send another update to FedEx, only to
discover that his electronic access had been disabled. Id. ¶ 21.
On July 30, 2022, HR informed Mr. Cabacoff that his employment
with FedEx had been terminated on July 13, 2022 due to job
abandonment. Id. ¶ 21.
Following his termination, Mr. Cabacoff requested to review
his personnel file. FedEx granted this request on August 16,
2022. Id. ¶ 51. Mr. Cabacoff alleges, however, that he was
shown a “gutted” version of his file. Id. ¶ 53. He alleges that
items missing from his personnel file were removed as part of a
“coverup” designed to hide the fact that the “job abandonment
rationale for his termination was a disguise for illegal
termination.” Id. ¶¶ 55-56.
On December 22, 2022, Mr. Cabacoff, proceeding pro se, sued
FedEx in state court. FedEx timely removed the case to this
court pursuant to 28 U.S.C. § 1332. The complaint contained
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
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emotional distress. On August 31, 2023, Chief Judge McCafferty,
adopting this court’s Report and Recommendation, granted FedEx’s
motion to dismiss, without prejudice, with respect to counts II,
III, and IV. (Doc. No. 16), and granted Mr. Cabacoff leave to
amend his complaint. Id. He did so on September 22, 2023.
(Doc. No 18). The FAC includes two counts: I) Wrongful
termination; and II) negligent infliction of emotional distress.
Both of these counts were in Mr. Cabacoff’s original complaint.1
Analysis
A. Count I – Wrongful Discharge
Under New Hampshire common law, a plaintiff must establish
three essential elements to prevail on a claim for wrongful
discharge:
(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). The parties agree that Mr. Cabacoff was
1 Although Mr. Cabacoff’s claim that FedEx violated his
right to access his personnel file was not dismisssed, he does
not reassert that claim in the FAC. Instead, he asserts that the
alleged file-related violations are supportive of his wrongful
termination and emotional distress claims. FAC (Doc. No. 18) at
12.
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terminated. With respect to the two disputed criteria, “the
first prong focuses on the nature of the employer's actions,
while the public policy prong pertains to the employee's acts.”
Gage v. Rymes Heating Oils, Inc., No. 14-CV-480-PB, 2016 WL
843262, at *10 (D.N.H. Mar. 1, 2016) (cleaned up). “[O]rdinarily
the issue of whether a public policy exists is a question for
the jury, [but] at times the presence or absence of such a
public policy is so clear that a court may rule on its existence
as a matter of law.” Id. (quoting Short v. Sch. Admin. Unit No.
16, 612 A.2d 364, 370 (N.H. 1992)). That clarity is present
here. The allegations in the FAC satisfy neither criteria.
1. Bad Faith, Retaliation, or Malice2
An employer's bad faith or malice may be established where
“(i) an employee is discharged for pursuing policies condoned by
the employer, (ii) the record does not support the stated reason
for the discharge, or (iii) disparate treatment was administered
to a similarly situated employee.” Straughn v. Delta Air Lines,
Inc., 250 F.3d 23, 44 (1st Cir. 2001) (citing Cloutier v. A & P
Tea Co., 436 A.2d 1140, 1143-44 (N.H. 2001)). Bad faith can also
be discerned from the course of events surrounding an employee's
discharge, “the manner in which the plaintiff was discharged,”
2 As there is no claim of retaliation, the court confines
its analysis to whether the FAC sufficiently alleges bad faith
or malice.
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or shifting reasons for an employee's termination. See Cloutier,
436 A.2d 1140; E.C. Waste, Inc. v. NLRB, 359 F.3d 36, 44 (1st
Cir. 2004) (changing reasons for an employee's dismissal may
raise an inference of pretext).
While bad faith or malice comes in many forms, undisputed
facts showing that an employer terminated an employee for
legitimate business reasons will not support a finding of bad
faith. See, e.g., Straughn, 250 F.3d at 44-45 (no bad faith
where employee discharged for dishonesty); MacDonald v. Tandy
Corp., 796 F. Supp. 623, 627-28 (D.N.H. 1992) (no bad faith
where employee was fired because he was suspected of stealing
money from the company); Antonis v. Elecs. for Imaging, Inc.,
No. 07-cv-163-JL, 2008 WL 5083979, at *3 (D.N.H. Nov. 25, 2008)
(no bad faith where employee terminated pursuant to a company-
wide reduction in force).
Here, the foundation of Mr. Cabacoff’s wrongful termination
claim is that he reported his injury-related absences but was
nevertheless terminated. But while he claims that reporting his
absence electronically was “faster and more reliable,” (FAC
(Doc. No. 18) ¶ 18, the FAC contains no allegations that this
method of communicating his absence – or “shunn[ing] direct
telephone contact” id. – was in compliance with FedEx attendance
reporting policies. Moreover, his allegations of an “utter
collapse . . . of coordination between HR and floor
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supervisors,” id. ¶ 45, and “gross administrative neglect,” id.
¶ 85 are more properly characterized as incompetence, rather
than malice or bad faith.
Finally, Mr. Cabacoff’s allegations that FedEx “gutted” his
personnel file cannot support a wrongful termination claim.
Such actions are alleged to have occurred after his putatively
illegal termination, and, therefore, could not have served as a
motivation for the termination. Accordingly, the FAC fails to
satisfy the “bad faith or malice” prong of a wrongful
termination claim.
2. Public Policy
As he did in objecting to dismissal of his original
complaint, Mr. Cabacoff concedes that there is no identifiable
public policy that supports his actions. See FAC (Doc. No. 18)
¶ 73-75 (describing claim as a “novel fact pattern,” “a one of a
kind case,” and “novel litigation”); see also id. ¶ 85 (alleging
that plaintiff’s actions further a “hidden (verbal or written
internal) public policy or no established public policy”).
Because “[s]imply positing that it is conceivable that undefined
public policy is promoted” is insufficient to support a wrongful
termination claim, see Netska v. Hubbell, Inc., No. 22-cv-265-
SM, 2023 WL 199340, at *4 (D.N.H. Jan. 17, 2023), the FAC also
fails to satisfy the third element required under count 1.
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Against this legal backdrop, Mr. Cabacoff’s wrongful termination
claim should be dismissed.
B. Count II – Negligent Infliction of Emotional Distress
The court dismissed this claim from Mr. Cabacoff’s original
complaint because New Hampshire’s worker’s compensation regime
bars an employee’s negligence claims against his employer. See
Karch v. BayBank FSB, 794 A.2d 763, 770 (N.H. 2002) (“workers'
compensation is employee's exclusive remedy against
employer for negligent and intentional infliction of
emotional distress). The same result is warranted here.3
Mr. Cabacoff’s claim for negligent infliction of emotional
distress should be dismissed.
Conclusion
Based on the foregoing, the district judge should grant
FedEx’s motion to dismiss (Doc. No. 19).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
3 Mr. Cabacoff argues wrongful termination claims are
excluded from New Hampshire’s worker’s compensation exclusivity
provisions. Pl. Mem. (Doc. No. 20-1) at 13. While this is
correct, the argument is misplaced. The court is not
recommending dismissal of Mr. Cabacoff’s wrongful termination
claim pursuant to the worker’s compensation statute, but rather
because it failed to state a claim for relief pursuant to Fed.
R. Civ. P. 12(b)(6). Only his claim for negligent infliction of
emotional distress claim is subject to dismissal under the
worker’s compensation bar.
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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
February 5, 2024
cc: Robert Cabacoff, pro se
counsel of record
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