STEVEN J. McAULIFFE, District Judge.
Katherine Frederick was employed by the State of New Hampshire, Department of Health and Human Services ("DHHS" or the "Department") as a child support officer in its Conway, New Hampshire, office. DHHS terminated her employment on September 21, 2012. Frederick subsequently filed this suit, advancing state and federal claims, including claims asserting Title VII (Pregnancy Discrimination Act) violations, retaliation, FMLA interference, and wrongful discharge. DHHS moved to dismiss all of Frederick's claims, and, on September 30, 2015, the court granted DHHS's motion, without prejudice to Frederick's filing an amended complaint.
On November 13, 2015, Frederick filed an amended complaint, in which she asserts federal claims under Title VII (for gender discrimination) and the Americans with Disabilities Act ("ADA"), as well as a claim for wrongful discharge under state law. DHHS again moves to dismiss Frederick's claims.
When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader."
To survive a motion to dismiss, "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
For purposes of resolving the motion to dismiss, the factual allegations set forth in Frederick's complaint and the attached exhibits must be taken as true. The facts asserted by Frederick in her amended complaint are substantially similar to those alleged in her original complaint and summarized by the court in its September 2015 order.
Frederick asserts that she became employed as a child support officer in the Conway, New Hampshire, office of DHHS in or around November of 2011. Compl. at ¶ 6. Her job performance led to an increase in collected child support arrearages, for which she was praised.
Early in March of 2012, Frederick was diagnosed with gestational diabetes and anemia. Compl. at ¶ 9. She was required to test her blood sugar multiple times each day, self-administer insulin injections, and to exercise following meals to help regulate her blood sugar levels.
In addition to informing the Human Resources Department of her pregnancy-related medical conditions, Frederick informed Hebert, her supervisor. Compl. at ¶ 11. Frederick alleges that, in response, Hebert "pressured [her] to work harder and faster," accused her of "not wanting to be at work," and stated that she did not know what Frederick's "actual capabilities were, given that [she] had not worked with . . . Frederick before [her] pregnancy." Compl. at ¶ 12.
On April 11, 2012, Frederick met with the DHHS Ombudsman, Marie Lang, and the Human Resources Director, Mark Bussiere, to report what Frederick considered to be Hebert's discriminatory conduct. Compl. at ¶ 13. Frederick contends that accommodations proposed as a result of that meeting failed to adequately account for her disabling PTSD and anxiety.
On May 14, 2012, Frederick began a period of FMLA leave, due to her pregnancy. Compl. at ¶ 14. Prior to taking leave, Frederick asked to meet with Lang and Bussiere upon her return, to discuss her request for accommodations related to her PTSD and anxiety conditions.
Because Frederick suffered from gestational diabetes during her pregnancy, her son had a heightened risk of developing diabetes. Compl. at ¶ 17. Her medical providers told Frederick that breastfeeding her son would reduce that risk.
For approximately the first four and a half months of his life, Frederick's baby would not accept nutrition from a bottle, and would only breastfeed. Compl. at ¶ 18. Frederick and her husband spoke to a lactation consultant and tried specialized bottles and a breast pump, but the baby would only be fed from the breast.
In or around July 2012, Frederick's medical provider approved her return to part-time work, up to four hours per day, five days per week, but specified that Frederick might need to take a half-hour break. Compl. at ¶ 19. Specifically, she noted that Frederick could work from 8:00 a.m. to 12:30 p.m. with a 30-minute break, resulting in a four-hour workday.
On or about July 25, 2012, Frederick notified Hebert that she had been medically cleared to return to work part-time and was ready to do so. Compl. at ¶ 20. She advised Hebert that she would require additional break time to breastfeed her son as an accommodation due to his refusal to take a bottle and to address her anxiety and PTSD conditions.
Hebert responded that DHHS would not provide Frederick additional break time for lactation purposes, and that she would not be permitted to use her break time to leave the work premises to breastfeed her baby. Compl. at ¶ 21. But, Hebert informed Frederick that a lactation room was available for her use, during her regular break time, to pump breast milk into a bottle for her baby.
Soon after, Frederick received a call from Human Resources indicating that she "could only return to work if she `[was] able to work the complete 4 hours of work and not leave during this time.'"
Frederick emailed the State Ombudsman on August 1, 2012, noting that her FMLA leave expired on Friday, August 3, 2012, and that she needed to return to work the following Monday, August 6, 2012. Compl. at ¶ 24. She noted that she had been released by her medical provider to work part-time, but DHHS had not approved. She asked for a meeting to discuss and resolve the issue.
On August 3, 2012, Human Resources told Frederick that DHHS would permit her additional breaks to express milk, but would not permit her to leave the work premises to breastfeed her baby at his daycare facility, nor would it permit her to arrange for her son to be brought to her so that she could breastfeed in any appropriate private place on DHHS premises. Compl. ¶¶ 25, 27.
On August 5, 2012, Frederick emailed Human Resources and the Ombudsman, attaching a letter from her medical provider that explained her need to breastfeed. Compl. ¶ 26. DHHS responded on August 6, 2012, stating that Frederick had been expected to return to work that day, and despite the documentation from her medical provider, would be expected from 8:00 a.m. to 12:00 p.m. the next day. Compl., Exhibit A at p. 8. Frederick was also informed that if she had three unexcused absences after exhausting her FMLA leave, she could be terminated.
DHHS sent another email on August 7, 2012, the day after Frederick's FMLA leave expired, in which it conceded that Frederick would be permitted to breastfeed her child on breaks "in any public area on the grounds" of DHHS (as allowed by state law). Compl., Exhibit A at p. 8;
DHHS's suggestion that she breastfeed her son in DHHS's public areas was not acceptable to Frederick. Compl. at ¶ 27. She felt the suggestion, which would have required her to breastfeed in front of DHHS staff and clients, "needlessly compromised her dignity" and "endangered her safety," especially because "a violent and dangerous individual who lived in the neighborhood of the workplace had stalked" her, requiring her to obtain a restraining order. Compl. at ¶ 27. Accordingly, Frederick had still not returned to work when she received a letter, on August 21, 2012, notifying her that she was expected to attend a disciplinary hearing on August 23. Compl. at ¶ 29, Exhibit A at p. 9.
At the hearing, Hebert explained that its purpose was to provide Frederick an opportunity to defend herself and explain her conduct. Compl. ¶ 30. Frederick set out two options that would permit her to return to work. First, Frederick asked to use the designated lactation room to breastfeed her baby rather than a public space on the DHHS premises. But, says Frederick, DHHS's attorney responded, "Nope, not gonna happen. It's just for pumping." Compl. at ¶ 32. Frederick then reiterated her request to use reasonably extended breaks during the workday to travel a short distance off the premises, as DHHS allowed other employees to do, in order to breastfeed her baby.
No agreement was reached and, after Frederick failed to report to work for about seven weeks following expiration of her FMLA leave, her employment was terminated by letter dated September 21, 2012. Compl. at ¶ 35.
In July of 2013, Frederick timely filed a Charge of Discrimination with the EEOC. Compl. ¶ 36. The EEOC issued a right to sue letter on July 17, 2014. Compl. ¶ 37.
As discussed above, on September 21, 2014, Frederick timely filed her initial complaint, alleging violations of Title VII's Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k); the Break Time for Nursing Mothers and retaliation provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 207(r) and 215(a)(3); the FMLA's interference provision, 29 U.S.C. § 2615; and New Hampshire's wrongful discharge and whistle blower statutes, N.H. Rev. Stat. Ann. 275-E. DHHS moved to dismiss Frederick's complaint, arguing,
On November 11, 2015, Frederick filed an amended complaint. She now alleges violations of the Americans with Disabilities Act, based on DHHS's purported failure to accommodate her own disabilities, and her son's "disabling impairment substantially limiting his ability to take nutrition,"
DHHS again moves to dismiss, asserting that Frederick has failed to exhaust her administrative remedies and failed to comply with the applicable statutes of limitation. DHHS also asserts that the facts as pled by Frederick do not allege cognizable claims for relief.
DHHS first argues that Frederick's ADA claim must be dismissed because she failed to raise that theory of liability in her EEOC charge. "[I]t is well-settled that an employee alleging discrimination must file an administrative claim with the EEOC or with a parallel state agency before a civil action may be brought."
Frederick's ADA claim falls within the scope of her EEOC charge. As Frederick points out, in the form charge itself, she checked that DHHS had discriminated against her based on "sex," "retaliation," and "
Next, DHHS argues that Frederick's ADA and Title VII claims are time-barred, because she failed to file suit within 90-days of receiving her right-to-sue letter.
A party asserting a claim under the ADA or Title VII must file a complaint within 90-days of receiving a right-to-sue letter. 42 U.S.C. § 2000e-5(f). Frederick received her rightto-sue letter on July 17, 2014.
DHHS thinks that Rule 15's "relation back" doctrine does not apply, because the deadline for amending the complaint set by the scheduling order in this case expired before she filed. It is Rule 16(b)'s "good cause" standard that should apply, DHHS argues. But, DHHS's argument overlooks the fact that the court granted Frederick leave to amend her complaint. Accordingly, the pertinent question is whether her ADA and Title VII claims relate back under Civil Rule 15(c).
Rule 15(c) provides that an amended pleading "relates back" to the date of the original pleading when "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). Interpreting Rule 15 in
With respect to Frederick's Title VII claim, the analysis is fairly straightforward. Frederick's original and amended Title VII claims plainly arose out of the same "core of operative facts,"
Whether Frederick's ADA claim relates back is a bit more complicated. "The addition of new claims to an amended pleading does not alone defeat relation back; the question instead is whether the initial pleading provided a defendant with adequate notice of the potential new claims."
Frederick's original complaint also referenced her EEOC charge. The EEOC charge, which was attached as an exhibit, accused DHHS of failing to comply with the ADA. A letter from Frederick's health care provider was also attached to the original complaint, a letter that Frederick had earlier provided to DHHS, which states:
Document No. 1, Exhibit 7, at p. 2. It cannot reasonably be said, then, that DHHS was not "given adequate notice of the conduct, transaction, or occurrence that forms the basis of the claim."
For these reasons, the court finds that Frederick's ADA claim relates back to her original complaint and is not timebarred.
DHHS contends that Frederick has not stated an ADA claim because she has not sufficiently alleged that she requested a reasonable accommodation from DDHS for her disability. According to DHHS, Frederick did not allege in either her original complaint or EEOC charge that she requested to breastfeed her son as an accommodation for her anxiety or PTSD disability. Therefore, DHHS says, Frederick's allegation in her amended complaint that she requested to breastfeed as an accommodation for her anxiety or PTSD disability is inconsistent with her prior pleadings and the documents referenced therein, and cannot be taken as true for purposes of ruling on the motion to dismiss.
On a motion to dismiss for failure to state a claim, the plaintiff's "well-pleaded factual allegations contained in the complaint" are assumed to be true.
Accordingly, DHHS's motion to dismiss Frederick's ADA claim is denied.
Title VII of the Civil Rights Act prohibits employers from discriminating against employees based on sex with respect to "compensation, terms, conditions or privileges of employment." 42 U.S.C. § 2000e-2(a). Frederick purports to allege a "sex plus" claim, which "refers to the situation where an employer classifies employees on the basis of sex
Frederick purports to be a member of a subclass consisting of "women with infants who cannot take nutrition from bottles but instead must breastfeed." Compl. at ¶ 50. DHHS violated Title VII, she says, by treating her less favorably than employees who were not in that subclass. Frederick alleges that she was treated differently than: (1) breastfeeding mothers whose children would drink breastmilk from a bottle (who were permitted to pump breastmilk privately at DHHS); and (2) other DHHS employees, who were allowed to leave the office during the work day on their breaks for a variety of personal reasons. Compl. at ¶ 53.
With respect to Frederick's allegation that she was treated differently than DHHS employees "allowed" to leave the premises during the work day, as the court noted in its order on DHHS's first motion to dismiss, the facts, as alleged, simply do not give rise to a disparate treatment claim. Frederick offers nothing new of substance, and what she realleges does not support her assertion that other DHHS employees were "allowed" to leave the premises, while she was not.
When Frederick sought permission to routinely leave the work premises on an extended break period to breastfeed her child, she was seeking an exception to a DHHS policy that required all employees to remain on the premises—employees were not allowed to leave during breaks.
As for Frederick's allegations concerning disparate treatment as compared to lactating female employees who were not medically required to exclusively breastfeed, Frederick has not adequately alleged that DHHS treated her differently "at least in part" because of her sex.
In other words, "regardless of the label given to the claim, the simple question posed by sex discrimination suits is whether the employer took an adverse employment action at least in part because of an employee's sex."
Given that precedent, Frederick's allegations that she was treated differently from other lactating women—women whose children would drink breastmilk from bottles and who were allowed to pump in private—do not give rise to a Title VII claim. She has not alleged that her subclass of women was unfavorably treated as compared to a corresponding subclass of men.
DHHS's actions may well have been arbitrary and unfair. But, "federal law does not protect generally against arbitrary or unfair treatment in private employment, but only against actions
In order to state a common law claim for wrongful termination, "a plaintiff must allege facts sufficient to establish `(1) that the termination of employment was motivated by bad faith, retaliation or malice; and (2) that she was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn." Document No. 14, at p. 27 (citing
In support of her wrongful discharge claim, Frederick now alleges that DHHS refused to provide an accommodation to which she was legally entitled, and without which she could not return to work.
But, accepting Frederick's allegations as true—as the court must at this stage—and drawing all reasonable inferences therefrom in her favor, Frederick's wrongful discharge claim is at least minimally sufficient to survive DHHS's motion to dismiss, in that, the complaint describes her entitlement to reasonable accommodations related to her own disabilities (PTSD and anxiety), vaguely suggests that public policy would encourage her not to return to work absent accommodations to which she was legally entitled, and that DHHS fired her in fact because she insisted on returning only if her disabilities were accommodated, which she implies constitutes bad faith and retaliation. The court's determination takes into account the early stage of this litigation, as well as both parties' failure to meaningfully brief whether the facts as alleged could, as a matter of law, give rise to a plausible inference of bad faith, malice, or retaliation. While the claim may not survive dispositive motions practice, the prudent course is to await an adequately developed record before considering the identified substantive legal issues.
For the foregoing reasons, as well as those set forth in DHHS's memoranda (documents no. 18-1 and 22), DHHS's motion to dismiss (document no. 18) count two of the first amended complaint is
Compl. Exhibit A at p. 9 (emphasis in original).
