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Hirth v. Wal-Mart Stores East, L.P

United States District Court, D. New Hampshire

February 25, 2016

Mary E. Hirth
v.
Wal-Mart Stores East, L.P Opinion No. 2016 DNH 037

          MEMORANDUM AND ORDER

          PAUL BARBADORO, District Judge.

         Mary E. Hirth brought this action against her former employer, Wal-Mart Stores East, alleging that Wal-Mart discriminated against her on the basis of her gender. Hirth's complaint includes ten counts, only five of which are at issue here: three 42 U.S.C. § 1983 claims (Counts III, IV, and V); a 42 U.S.C. § 1981 claim (Count VI), and a state-law wrongful discharge claim (Count X). Wal-Mart has moved to dismiss these counts, arguing that they fail to state viable claims for relief.

         I. BACKGROUND

         Hirth, a Caucasian American woman, began working for Wal-Mart in 2008 at the company's North Conway, New Hampshire store. Doc. No. 1 at 3. Hirth was hired as an overnight stocker and, despite receiving positive yearly reviews and pay raises, was never promoted. She remained an overnight stocker until July 2014, when she was terminated.

         Hirth and a female co-worker were fired several days after they were found working atop steel warehouse racking, allegedly in violation of the company's safety policy. Id. at 4-5. Hirth apparently concedes that she and her co-worker were on top of the racking, but claims that she was never informed (until her termination) that her conduct violated Wal-Mart's rules. Id . She further states that her supervisor-on-duty, Mark Ayers, saw Hirth on top of the racking but did not tell her to get down, or explain that her conduct might result in discipline. Hirth worked the rest of that week without learning that she had acted improperly, before eventually being fired.

         About a month later, Hirth received a text message from her former Wal-Mart co-worker, "Lorraine, " stating that "Store Planner, Dave (male) had his workers' [sic] on top of the steel [racking]...." Id. at 7. According to Lorraine, Dave said that "he would take the hit if it was an OSHA violation, " because climbing on the racking was "the only way to get the job done." Id . Dave retained his position with the company, even though Hirth and her female co-worker were fired for similar conduct. Id.

         Around that same time, Hirth asked to be reinstated to her former position. When Wal-Mart denied her request, she filed complaints with the Equal Employment Opportunity Commission ("EEOC") and the New Hampshire Commission for Human Rights. The EEOC then issued a right to sue letter, and Hirth timely filed this action. Id. at 7. In her complaint, Hirth alleges that she was wrongfully terminated, discriminated against on the basis of her gender, subjected to unfair disciplinary practices, and exposed to unequal terms of employment. Wal-Mart has moved to dismiss several of Hirth's claims pursuant to Federal Rule of Civil Procedure 12(b)(6).

         II. STANDARD OF REVIEW

         To survive a Rule 12(b)(6) motion, a plaintiff must allege sufficient facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if it provides "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . This plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully, " id., but "simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of wrongdoing. Twombly, 550 U.S. at 556.

         I employ a two-step approach in deciding a Rule 12(b)(6) motion. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I screen the complaint for statements that "merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action." Id . (citations, internal punctuation, and alterations omitted). I then accept as true all non-conclusory factual allegations and the reasonable inferences drawn therefrom, and determine whether the claim is plausible. Id.

         III. ANALYSIS

         Wal-Mart challenges Hirth's 42 U.S.C. § 1983 claims (Counts III, IV, and V); 42 U.S.C. § 1981 claim (Count VI), and wrongful discharge claim (Count X).[1] It first argues that the Section 1983 claims fail because Hirth did not allege that Wal-Mart was acting under color of state law when it allegedly discriminated against her. Second, it contends that the Section 1981 count fails because Hirth did not assert that she was discriminated against on the basis of race. And third, Wal-Mart challenges Hirth's wrongful discharge claim by arguing that she failed to allege that she was fired for doing something that public policy would encourage, or refusing to do something that public policy would condemn. I address each argument in turn.

         A. Section 1983 Claims

         In Counts IV, V, and X, Hirth brings claims pursuant to 42 U.S.C. § 1983, alleging that Wal-Mart violated her constitutional rights by (1) firing her on the basis of her gender, (2) refusing to promote Hirth because of her gender, and (3) failing to train and supervise its employees regarding gender-based discrimination. Wal-Mart has moved to dismiss these claims, arguing that Hirth has not ...


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