United States District Court, D. New Hampshire
STEVEN J. McAULIFFE, District Judge.
The State of New Hampshire, Department of Health and Human Services ("DHHS" or the "Department") briefly employed Katherine Frederick as a child support officer in its Conway, New Hampshire, office. It terminated her employment on grounds that she failed to report to work following expiration of her leave under the Family and Medical Leave Act ("FMLA"). On July 17, 2013, Frederick timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), arguing that her discharge was the result of unlawful discrimination. On July 17, 2014, the EEOC issued a right-to-sue letter. Subsequently, Frederick timely filed this suit, in which she advances both state and federal claims, including workplace discrimination, retaliation, FMLA interference, and wrongful discharge.
DHHS moves to dismiss all of Frederick's claims, asserting, among other things, that the facts, as pled by Frederick, do not allege a cognizable claim for relief, and actually establish that it discharged her for failing to return to work after her leave expired, and not for any unlawful reason. DHHS's motion (document no. 4) is granted.
Standard of Review
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." SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted). Where, as here, written instruments are provided as exhibits to a pleading, the exhibit "is part of the pleading for all purposes." Fed.R.Civ.P. 10(c). See also Trans-Spec Truck Serv. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008) (providing that exhibits "attached to the complaint are properly considered part of the pleading for all purposes, ' including Rule 12(b)(6)" and that when "a complaint's factual allegations are expressly linked to - and admittedly dependent upon - a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6)."). When "a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations." Clorox Co. P.R. v. Proctor & Gamble Commer. Co., 228 F.3d 24, 32 (1st Cir. 2000) (quoting N. Ind. Gun & Outdoor Shows v. City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998)).
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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to "nudge [plaintiff's] claims across the line from conceivable to plausible." Id. at 570. If, however, the "factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Tambone, 597 F.3d at 442.
For purposes of resolving the motion to dismiss, the factual allegations set forth in Frederick's complaint and the attached exhibits (document no. 1) must be taken as true. The complaint asserts the following. Frederick became employed as a child support officer in the Conway, New Hampshire, office of DHHS in or around November of 2011. (Compl. at ¶ 5.) She was a capable employee and, early in her tenure, Frederick was praised for her job performance. (Id.) Frederick was pregnant when hired and was expected to deliver her child in late May of 2012. (Ex. I at 4.) She disclosed her pregnancy to her supervisor, Karen Hebert, shortly after starting work at DHHS. Frederick requested an ergonomic consultation and a chair with better arm and back support due to back pain she was experiencing (as a result of previous shoulder surgery) that was exacerbated by her pregnancy. (Id.)
On or about March 10, 2012, Frederick was diagnosed with gestational diabetes and anemia. (Id.) On March 19, 2012, Frederick obtained a letter from her medical provider confirming a need to accommodate her pregnancy-related anemia, which she faxed to the Human Resources Department at DHHS. (Ex. A & B.) Her request for reasonable accommodation included her pregnancyrelated anemia and diabetes, as well as post traumatic stress disorder and anxiety. (Id.) Her medical provider's letter explained that anemia can cause "extreme fatigue, shortness of breath and lack of mental clarity, " and requested that DHHS work with Frederick to "modify her work schedule to make the best use of her time" and to "allow for extended breaks if needed, " which Frederick's medical provider encouraged her to use to get exercise. (Id.)
In addition to informing the Human Resources Department of her pregnancy-related medical conditions, she informed Hebert. In response to Frederick's report that she was suffering from pregnancy-related impairments, Hebert "pressured Frederick to work harder and faster, " accused Frederick 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 ¶¶ 7-8; Ex. I at 4.) 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 ¶ 9.)
On May 14, 2012, Frederick began a period of FMLA leave due to her pregnancy. She gave birth about a week later. (Id. at ¶¶ 10-11; Ex. I at 5.) For approximately the first four and a half months of his life, Frederick's baby would not accept nutrition from a bottle, so Frederick had to breastfeed him. (Compl. at ¶ 12.)
As of July 16, 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 "[m]ay need to take breaks as needed, " providing as an example 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. (Compl. at ¶ 13; Ex. C.) Frederick needed the 30 minute break to breastfeed her baby. (Compl. at ¶ 13.) The note also provided that Frederick's anxiety issues should be addressed in a meeting with human resources and the Ombudsman before Frederick returned to work full time. (Ex. C.)
On or about July 25, 2012, Frederick notified her supervisor, Hebert, that she had been cleared to return to work part-time and was ready to do so. (Compl. at ¶ 14.) Hebert told Frederick not to return until July 26 because it would be easier to track her hours. (Ex. I. at 6.) Frederick agreed, but nonetheless went to the office to fax the letter clearing her to return part-time and requesting accommodations to human resources. (Id.) At that time, she spoke with Hebert and explained that she might need additional break time for lactation purposes beyond her one 15 minute break, and asked to use that break time to breastfeed her baby at his daycare facility, which was only.3 miles from the DHHS office where she worked. (Compl. at ¶ 14; Ex. I at 6.)
Upon hearing Frederick's request, Hebert's "posture and disposition immediately changed." (Ex. I at 6.) Hebert told Frederick that DHHS would not allow her additional break time for lactation purposes, and that she would not be permitted to use her break time to leave the premises to breastfeed her baby. But, Hebert informed Frederick that there was a lactation room available for her use during her regular break time to pump breast milk into a bottle for her baby. (Id. at ¶ 15; Ex. I at 6.) Frederick explained that because her baby would not take a bottle, pumping was not an option for her, so she reiterated her requests to walk the three minutes on her regular break to breastfeed her baby and for additional break time as needed. Hebert refused, and told Frederick that she would not be permitted to leave the premises on her regular break nor would she receive additional break time for lactation purposes. (Id.)
Later that day, Frederick received a call from human resources indicating that she "could come back to work as long as [she was] able to work the complete 4 hours of work and not leave during this time." (Id. at ¶ 16; Ex. D; Ex. I at 6.) Frederick was also told "that if she could not do this that perhaps [her] other option was to wait until [she] could return full time." (Ex. D.) Frederick responded that her understanding of human resources' response was that "HR and my supervisor are not clearing me to return to work yet, based on my medical needs." (Id.)
A few days later, human resources communicated to 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 him to be brought to her to breastfeed in the lactation room. (Ex. I at 6.) Frederick says that DHHS put her in an untenable position, forcing her to choose between breastfeeding her baby and her employment. Because her FMLA leave was running out and she would need to return to work by Monday, August 6, 2012, Frederick emailed the DHHS Ombudsman on August 1, 2012, informing her of the problem and seeking her help. (Compl. at ¶ 18; Ex. E.)
On August 3, 2012, Frederick received an email from the Director of Human Resources stating that the medical information Frederick had provided was sufficient, and reiterating that Frederick would be permitted additional break time for lactation purposes, but would not be permitted to leave the premises to breastfeed her baby at his nearby daycare facility. (Compl. at ¶ 19; Ex. F.)
On August 5, Frederick emailed Human Resources and the Ombudsman, attaching a letter from her medical provider that explained her need to breastfeed both for her benefit and for the benefit of her baby. (Ex. G.) The letter explained that Frederick "should breastfeed as much as possible, to ensure maximum endorphin release to generate feelings of well-being and to minimize her anxiety disorder." (Id.) The letter further stated, "As her infant does not bottle feed well, breastfeeding is imperative for her infant's health, " especially given his risk of developing diabetes due to Frederick's gestational diabetes, and further advised that "[t]wo 15 minute breaks daily and one hour for lunch may not be considered a reasonable amount of time for a nursing mother with PTSD and anxiety. Additional break time may be needed for lactation purposes." (Id.) The letter also addressed Frederick's return to full-time employment by ...