United States District Court, D. New Hampshire
Benjamin T. King, Esq., Elizabeth A. Lahy, Esq., Lisa M.
J . McAuliffe United States District Judge
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.
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. DHHS’s motion is denied in part,
and granted in part.
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)).
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.
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.
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. Id. at ¶¶ 6, 12.
Frederick was pregnant when hired; she was due to deliver her
child in late May of 2012. Compl., Exhibit A at p. 5. During
her pregnancy, Frederick discussed breastfeeding with her
supervisor, Karen Hebert. Compl. ¶ 8. When Frederick
mentioned her intent to breastfeed her child, Hebert replied
that she had tried breastfeeding, and then wrinkled her face
“in disgust.” Id.
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. Id. On March 19,
2012, Frederick obtained a letter from her medical provider
confirming a need to accommodate her pregnancy-related
anemia. She faxed the letter to DHHS’s Human Resources
Department. Compl. at ¶¶ 10-11. She requested
accommodations for her pregnancy-related anemia and diabetes,
as well as for post-traumatic stress disorder and anxiety,
which, she alleges, “substantially limited her in major
life activities such as thinking and concentrating.”
Compl. at ¶ 9; Exhibit A at p. 5. Frederick’s
medical provider 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 in order to make
the best use of her time” and to “allow for
extended breaks if needed.” Id. at ¶ 10.
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.
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. Id. She returned the proposed
accommodations to Lang with edits. Id. Lang,
however, failed to respond to Frederick’s proposed
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. Id. at ¶ 15.
Frederick gave birth to a boy on May 22, 2012. Id.
at ¶ 16.
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.
Id. Her health care providers also advised that
breastfeeding would improve her own PTSD and anxiety symptoms
because, as they explained, breastfeeding results in a
hormonal release of oxycotin and prolactin, which ameliorate
symptoms of anxiety. Id. Finally, they advised that,
given Frederick’s anxiety and PTSD conditions, she had
a heightened risk of developing post-partum depression, and
breastfeeding could reduce that risk as well. Id.
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. Id.
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. Id. Frederick needed the 30-minute break to
breastfeed her baby. Id.
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. Id. She
asked to use that break time to breastfeed her baby at his
daycare facility, which was located three-tenths of a mile
from the DHHS office where she worked. Id.
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. Id. at ¶ 21;
Exhibit A at p. 7. Frederick explained that, because her baby
would not take a bottle, and because of her own medical
conditions, pumping was not an option for her. Compl. at
¶ 21. Hebert, however, remained firm, telling 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.
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.’” Id. at
¶ 22. Frederick felt she could not return to work under
those conditions, which “placed [her] in an untenable
position, forcing her to choose between her employment on one
hand, and the nutritional needs of her child and the counsel
of her health care providers on the other hand.”
Id. at ¶ 23.
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. Id.
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.
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. Id.
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;
see also Compl. ¶ 27. However, DHHS would not
permit Frederick to nurse her son in the privacy of
DHHS’s lactation room, or leave the premises during her
paid breaks. Compl., Exhibit A at p. 8. Frederick found
DHHS’s intransigence particularly frustrating because
other DHHS ...