United States District Court, D. New Hampshire
MCCAFFERTY, UNITED STATES DISTRICT JUDGE.
Melissa Fireside brings this suit against defendant Southern
New Hampshire University (“SNHU”), asserting
claims arising out of SNHU's decision not to hire her for
two full-time positions. SNHU moves to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. See doc.
no. 49. Fireside objects. For the reasons that follow, the
motion to dismiss is granted in part and denied in part.
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (internal quotation marks
omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
following facts are taken from Fireside's complaint. In
September 2015, SNHU hired Fireside to work remotely from her
home in Oregon as a part-time faculty reviewer in its College
for America division. A faculty reviewer evaluates student
projects for competency.
December 19, 2015, Fireside applied for a full-time team lead
position within the Psychology Department of SNHU, for which
she was qualified. On January 14, 2016, Fireside had a
second-round telephone interview with Julie-anne Edwards, the
Director of Operations, during which they discussed the
position and start date. During this interview, Fireside
informed Edwards that she was pregnant. Fireside also
informed Edwards of her expected delivery date. In response,
Edwards asked how much time Fireside planned to take for
maternity leave, to which Fireside replied one month.
stated that SNHU had made exceptions to start dates in the
past. Edwards informed Fireside, however, that she would not
select her for the position because her “due date
interfered with the position start date and training
period.” Doc no. 1-1 at ¶ 10. Edwards also told
Fireside that she would inform the hiring committee that
Fireside was unable “to perform in the position.”
Id. at ¶ 12. Edwards called Fireside again on
January 20, 2016, to notify her that SNHU did not select her
for the job. In February 2016, SNHU hired someone who was not
pregnant for the team lead position.
about April 25, 2016, Fireside applied for a fulltime faculty
position in SNHU's Psychology Department. While her
application was pending, Fireside filed a Charge of Unlawful
Discrimination against SNHU on or about June 3 with the U.S.
Equal Employment Opportunities Commission
(“EEOC”), which she also filed with the Oregon
Bureau of Labor and Industries (“BOLI”) and the
New Hampshire Commission for Human Rights
(“NHCHR”) at the same time.
did not interview Fireside for the faculty position. On
August 1, 2016, Fireside received a letter from SNHU's
Human Resources department denying her the job. Fireside
alleges that SNHU was aware of her discrimination complaint
when it rejected her for the second position as a full-time
faculty member. On August 19, Fireside filed an amended
complaint with the EEOC, BOLI, and NHCHR, which included
additional allegations of discrimination.
alleges five claims, each under Oregon state law: pregnancy
discrimination under Oregon Revised Statute
(“ORS”) 659A.030(1)(a); pregnancy discrimination
under ORS 659A.030(1)(b); retaliation for filing a
discrimination complaint under ORS 659A.030(1)(f); aiding and
abetting pregnancy discrimination under ORS 659A.030(1)(g);
and retaliation for bringing a civil proceeding under ORS
659A.230. SNHU moves to dismiss all of the claims, and
Count I - Refusal to Hire/Sex Discrimination
first claim for relief, Fireside contends that SNHU
discriminated against her because of her sex, in violation of
ORS 659A.030(1)(a), when it rejected her for the team lead
and faculty positons. The statute makes it an unlawful
employment practice “[f]or an employer, because of an
individual's . . . sex . . . to refuse to hire or employ
the individual.” ORS 659A.030(1)(a). Under the statute,
“sex” includes pregnancy, childbirth and related
medical conditions or occurrences. ORS 659A.029.
ORS 659A.030 is patterned after Title VII, both Oregon and
federal courts have considered federal Title VII [ ] case law
instructive when construing state law.” Jernigan v.
Alderwoods Grp., Inc., 489 F.Supp. 2d 1180, 1192 n.6 (D.
Or. 2007) (internal citations omitted). Relying on this
principle, SNHU argues that Fireside cannot meet the familiar
McDonnell-Douglas framework that applies to Title VII cases,
see McDonnell Douglas Corp. v. Green,411 U.S. 792
(1973), which requires a plaintiff to establish a prima facie
case of discrimination. To state a prima facie case of
discrimination, a plaintiff must allege facts showing that
(1) she was a member of a protected class; (2) she was
qualified for the position; (3) she was rejected for the