United States District Court, D. New Hampshire
Mary E. Hirth
Wal-Mart Stores East, L.P Opinion No. 2016 DNH 037
MEMORANDUM AND ORDER
BARBADORO, District Judge.
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
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.
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.
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.
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
STANDARD OF REVIEW
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
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.
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). 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.
Section 1983 Claims
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 ...