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Frederick v. State, New Hampshire Department of Health and Human Services

United States District Court, D. New Hampshire

August 16, 2016

Katherine Frederick, Plaintiff
State of New Hampshire, New Hampshire Department of Health And Human Services, Defendant Opinion No. 2016 DNH 139

          Benjamin T. King, Esq., Elizabeth A. Lahy, Esq., Lisa M. English, Esq.


          Steven J . McAuliffe United States 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.[1] DHHS’s motion is denied in part, and granted in part.

         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.

         Factual Background

         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. 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.

         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. 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.

         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. Id. She returned the proposed accommodations to Lang with edits. Id. Lang, however, failed to respond to Frederick’s proposed revisions. Id.

         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. Id. at ¶ 15. Frederick gave birth to a boy on May 22, 2012. Id. at ¶ 16.

         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. 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.

         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. Id.

         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. Id. Frederick needed the 30-minute break to breastfeed her baby. Id.

         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. 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.

         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. 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.

         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.’” 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.

         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. Id.

         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. Id.

         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; 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 ...

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