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Swirka v. Liberty Mutual Insurance Co.

United States District Court, D. New Hampshire

March 7, 2019

Elizabeth Swirka
v.
Liberty Mutual Insurance Co.

          Lorenzo R. Cabantog, Esq., Nancy Richards-Stower, Esq., Danielle Y. Vanderzanden, Esq.

          ORDER

          Joseph A. DiClerico, Jr., United States District Judge.

         Elizabeth 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.

         Background

         In a letter dated January 19, 2013, Swirka filed charges of discrimination against Liberty Mutual with the New Hampshire Commission on Human Rights.[1] 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.

         Liberty Mutual filed a petition of removal, pursuant to RSA 354-A:21-a, I, in Strafford County Superior Court on September 14, 2018.[2] 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.

         Swirka 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.

         Because 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.

         To 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.

         Discussion

         Liberty 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.

         A party 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).

         A. RSA 354-A

         To 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.”[3] RSA 354-A:21, IV. ...


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