United States District Court, D. New Hampshire
Lorenzo R. Cabantog, Esq., Nancy Richards-Stower, Esq.,
Danielle Y. Vanderzanden, Esq.
A. DiClerico, Jr., United States District Judge.
Swirka brings state and federal law claims of discrimination
and retaliation against her former employer, Liberty Mutual
Insurance Company. Liberty Mutual moves to dismiss
Swirka's state law claims as untimely filed under RSA
354-A:21-a. Swirka objects.
letter dated January 19, 2013, Swirka filed charges of
discrimination against Liberty Mutual with the New Hampshire
Commission on Human Rights. On April 9, 2018, the Commission
issued findings of probable cause on Swirka's charges.
The Commission sent “Orders of Notice” to Swirka
and Liberty Mutual by certified mail on June 1, 2018.
Mutual filed a petition of removal, pursuant to RSA
354-A:21-a, I, in Strafford County Superior Court on
September 14, 2018. The petition and complaint were docketed
as “Complaint-Civil” by the superior court.
Liberty Mutual then filed a notice of removal in this court
on September 25, 2018.
moved to remand the case to state court on the ground that
the removal was untimely in light of the Commission
proceedings. Liberty Mutual objected. The court denied the
motion to remand but noted that the unusual procedure under
RSA 354-A:21-a was an imperfect fit with the federal removal
procedures. Doc. 10, at *3.
of the unusual procedural posture of the case, Swirka had not
filed a complaint in state court. Instead, the court case was
initiated by the complaint filed by Liberty Mutual in
superior court. Liberty Mutual then removed the case that it
initiated in state court. Liberty Mutual had not filed an
answer to that complaint.
address the procedural abnormalities in the case, the court
ordered Swirka to file an amended complaint. In the amended
complaint, Swirka brings state law claims for gender, age,
and disability discrimination and retaliation under RSA 354-A
and federal law claims for gender discrimination under 42
U.S.C. § 2000e, et seq. (“Title VII”), age
discrimination under 29 U.S.C. § 621, et seq.
(“ADEA”), and disability and retaliation under 42
U.S.C. § 12112, et seq. (“ADA”). In
response, Liberty Mutual filed a partial motion to dismiss.
Mutual moves to dismiss the claims brought under RSA 354-A
(Counts I through IV) that are based on conduct that occurred
before September 13, 2015, on the ground that they are time
barred under RSA 354-A:21-a. Swirka objects, arguing that the
three-year limitations period in RSA 354-A:21-a does not
apply in the circumstances of this case.
may move to dismiss an action for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). Grounds for a motion under Rule 12(b)(6) include a
defense that the claims are barred by the applicable statute
of limitations. Abdallah v. Bain Capital LLC, 752
F.3d 114, 119 (1st Cir. 2014). In considering a motion to
dismiss under Rule 12(b)(6), the court accepts as true all of
the properly pleaded facts and draws reasonable inferences in
favor of the nonmoving party. Lemelson v. Bloomberg
L.P., 903 F.3d 19, 23 (1st Cir. 2018).
initiate discrimination claims under RSA 354-A, “an
aggrieved person” must file a complaint with the
Commission “within 180 days after the alleged act of
discrimination.” RSA 354-A:21, III. The Commission is
then required to “close each case or commence
adjudicative proceedings on such case under RSA 354-A:21
within 24 months after the filing date of the
complaint.” RSA 354-A:21, IV. ...