UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Katherine Frederick, Plaintiff

v. Case No. 14-cv-403-SM Opinion No.

State of New Hampshire, New Hampshire Department of Health And Human Services, Defendant

O R D E R

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”),

1 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,

(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

1 DHHS moves to dismiss pursuant to Federal Rule 12(b)(1) (document no. 18), presumably based on its assertion that Frederick’s claims are barred as untimely and because she failed to exhaust her administrative remedies. However, DHHS’s motion is properly considered under Federal Rule 12(b)(6), rather than Rule 12(b)(1). See Bergstrom v. Univ. of New Hampshire,

(D.N.H. 1996) (“As an initial matter, the requirement that a Title VII plaintiff timely file a charge with the EEOC prior to litigating in federal court is not jurisdictional but, rather, more analogous to a statute of limitations. Accordingly, the instant motion is properly treated as one alleging the failure to state a claim upon which relief can be granted under Rule 12(b)(6) and not as a motion attacking the court's jurisdictional capacity under Rule 12(b)(1).”) (internal citations omitted); see also Hecking v. Barger, No. CIV. 1:08-CV-490-JL,

, at *1, n. 4 (D.N.H. Feb. 23, 2010) (“The argument that a claim is barred by the statute of limitations raises an affirmative defense (not a jurisdictional defect), and it may be considered under Federal Rule 12(b)(6).”) (citations omitted). 2 “contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(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.,

(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.,

(1st Cir. 2000)

(quoting N. Ind. Gun & Outdoor Shows v. City of South Bend,

(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

3 recitation of the elements of a cause of action will not do.”

Bell Atl. Corp. v. Twombly,

(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.”

.

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,

.

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

4 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.

5 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. 6 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. 7 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 8 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

9 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

employees frequently traveled offsite during the workday for

such purposes as medical and hair appointments, and to attend

exercise classes. Compl. at ¶ 25. 10 DHHS’s suggestion that she breastfeed her son in DHHS’s

public areas was not acceptable to Frederick. Compl. at ¶ 27.

She felt the suggestion, which would have required her to

breastfeed in front of DHHS staff and clients, “needlessly

compromised her dignity” and “endangered her safety,” especially

because “a violent and dangerous individual who lived in the

neighborhood of the workplace had stalked” her, requiring her to

obtain a restraining order. Compl. at ¶ 27. Accordingly,

Frederick had still not returned to work when she received a

letter, on August 21, 2012, notifying her that she was expected

to attend a disciplinary hearing on August 23. Compl. at ¶ 29,

Exhibit A at p. 9.

At the hearing, Hebert explained that its purpose was to

provide Frederick an opportunity to defend herself and explain

her conduct. Compl. ¶ 30. Frederick set out two options that

would permit her to return to work. First, Frederick asked to

use the designated lactation room to breastfeed her baby rather

than a public space on the DHHS premises. But, says Frederick,

DHHS’s attorney responded, “Nope, not gonna happen. It’s just

for pumping.” Compl. at ¶ 32. Frederick then reiterated her

request to use reasonably extended breaks during the workday to

travel a short distance off the premises, as DHHS allowed other

11 employees to do, in order to breastfeed her baby. Id. at ¶ 33.

DHHS refused. Id.

No agreement was reached and, after Frederick failed to

report to work for about seven weeks following expiration of her

FMLA leave, her employment was terminated by letter dated

September 21, 2012. Compl. at ¶ 35.

Procedural Background

In July of 2013, Frederick timely filed a Charge of

Discrimination with the EEOC. Compl. ¶ 36. The EEOC issued a

right to sue letter on July 17, 2014. Compl. ¶ 37.

As discussed above, on September 21, 2014, Frederick timely

filed her initial complaint, alleging violations of Title VII’s

Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k); the

Break Time for Nursing Mothers and retaliation provisions of the

Fair Labor Standards Act (“FLSA”),

(r) and

215(a)(3); the FMLA’s interference provision,

;

and New Hampshire’s wrongful discharge and whistle blower

statutes, N.H. Rev. Stat. Ann. 275-E. DHHS moved to dismiss

Frederick’s complaint, arguing, inter alia, that she failed to

state a claim for relief, since the facts, as pled, established

that Frederick was discharged for failing to return to work

after her leave expired, and not for any unlawful reason. On

12 September 30, 2015, the court granted DHHS’s motion, but allowed

Frederick leave to file an amended complaint.

On November 11, 2015, Frederick filed an amended complaint.

She now alleges violations of the Americans with Disabilities

Act, based on DHHS’s purported failure to accommodate her own

disabilities, and her son’s “disabling impairment substantially

limiting his ability to take nutrition,” 2 and Title VII, based on

DHHS’s discrimination against her as member of a subclass of

women “with infants who cannot take nutrition from a bottle but

instead must breastfeed,” as well as a wrongful discharge claim

under New Hampshire law.

DHHS again moves to dismiss, asserting that Frederick has

failed to exhaust her administrative remedies and failed to

comply with the applicable statutes of limitation. DHHS also

asserts that the facts as pled by Frederick do not allege

cognizable claims for relief.

2 Frederick has since acknowledged that a plaintiff in an associational disability discrimination claim is not entitled to reasonable accommodation, and agrees that her ADA claim should be dismissed to the extent it alleges associational disability discrimination. See Pl.’s Mem. in Supp. of Obj. to Mot. to Dismiss at pp. 1-2. 13 Discussion

Failure to Exhaust Administrative Remedies

DHHS first argues that Frederick’s ADA claim must be

dismissed because she failed to raise that theory of liability

in her EEOC charge. “[I]t is well-settled that an employee

alleging discrimination must file an administrative claim with

the EEOC or with a parallel state agency before a civil action

may be brought.” Thornton v. United Parcel Serv., Inc.,

(1st Cir. 2009). The submission “serves several

purposes. Most importantly, it gives notice to both the

employer and the agency of an alleged violation and affords an

opportunity to swiftly and informally take any corrective action

necessary to reconcile the violation.”

“‘The scope of the

civil complaint is accordingly limited by the charge filed with

the EEOC and the investigation which can reasonably be expected

to grow out of that charge.’”

(quoting Powers v. Grinnell

Corp.,

(1st Cir. 1990)). But, on the other

hand,

it has been clearly established by this Circuit that “[a]n administrative charge is not a blueprint for the litigation to follow. . . . Thus, “the exact wording of the charge of discrimination need not ‘presage with literary exactitude the judicial pleadings which may follow.’” Tipler v. E.I. duPont deNemours & Co.,

(6th Cir. 1971) (quoting Sanchez [v. Standard Brands, Inc.], 431 F.2d [455] at 466 [5th Cir. 1970]). Rather, the critical question is whether the claims set forth in the civil complaint come within the “scope of the EEOC investigation which can

14 reasonably be expected to grow out of the charge of discrimination.” Sanchez, 431 F.2d at 466.

Fantini v. Salem State College,

(1st Cir. 2009)

(quoting Powers v. Grinnell Corp.,

, 38–39 (1st Cir.

1990) (internal citations omitted).

Frederick’s ADA claim falls within the scope of her EEOC

charge. As Frederick points out, in the form charge itself, she

checked that DHHS had discriminated against her based on “sex,”

“retaliation,” and “disability.” Exhibit A at p. 2 (emphasis

added). The charge also repeatedly refers to Frederick’s

requests for an accommodation relating to her PTSD and anxiety

conditions. See, e.g., id. at pp. 4, 5, 6, 7, 9. Finally, she

responded to the question, “Why [do] you believe you were

discriminated against[?],” by writing, “I believe I was

discriminated against on the basis of my disabilities: PTSD,

anxiety and pregnancy-related disabilities.” Id. at p. 11

(emphasis added). She then went on to cite not only the ADA

itself, but case precedent interpreting the ADA’s requirements.

Id. Frederick’s asserted ADA claim could, thus, reasonably be

expected to grow out of the allegations set forth in her EEOC

charge.

15 Whether Frederick’s Claims are Time-Barred

Next, DHHS argues that Frederick’s ADA and Title VII claims

are time-barred, because she failed to file suit within 90-days

of receiving her right-to-sue letter. 3

A party asserting a claim under the ADA or Title VII must

file a complaint within 90-days of receiving a right-to-sue

letter. 42 U.S.C. § 2000e-5(f). Frederick received her right-

to-sue letter on July 17, 2014. See Document No. 1, Exhibit J;

Compl. ¶ 37. Her original complaint, in which she asserted,

inter alia, a claim under Title VII and a wrongful discharge

3 DHHS’s argument with respect to the timeliness of Frederick’s wrongful discharge claim is not entirely clear. DHHS does not argue that Frederick’s wrongful termination claim is untimely because it fails to relate back to her original complaint. It argues, instead, that Frederick’s wrongful discharge claim is untimely because she failed to assert it within three years of the date on which she was terminated, citing precedent for the proposition that, when a suit is dismissed without prejudice, it is treated for statute of limitations purposes as if it had never been filed. See Def.’s Mem. in Supp. of Mot. to Dismiss at pp. 8-9 (citing Lee v. Cook County,

(7th Cir. 2011)). However, such precedent is not applicable when, as here, the suit was not formally dismissed, but rather a motion to dismiss was granted subject to plaintiff having been granted leave to file an amended complaint. See, e.g., Luevano v. Wal-Mart Stores, Inc.,

(7th Cir. 2013) (“If a timely complaint is dismissed but the action remains pending, as occurred here, an amended complaint relates back to the filing of the original complaint when ‘the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading....’.”) (quoting Fed. R. Civ. P. 15(c)(1)(B)).

16 claim, was timely filed on September 21, 2014. Frederick argues

that both claims in her amended complaint fall squarely within

Federal Rule of Civil Procedure 15(c)’s relation back doctrine,

because her amended complaint “merely bolsters and supplements”

her original claims and allegations. Pl.’s Mem. in Supp. of

Obj. to Mot. to Dismiss at p. 7. Similarly, Frederick argues,

her ADA claim is not untimely because that claim also relates

back to the date of her original, timely-filed complaint.

DHHS thinks that Rule 15’s “relation back” doctrine does

not apply, because the deadline for amending the complaint set

by the scheduling order in this case expired before she filed.

It is Rule 16(b)’s “good cause” standard that should apply, DHHS

argues. But, DHHS’s argument overlooks the fact that the court

granted Frederick leave to amend her complaint. Accordingly,

the pertinent question is whether her ADA and Title VII claims

relate back under Civil Rule 15(c).

Rule 15(c) provides that an amended pleading “relates back”

to the date of the original pleading when “the amendment asserts

a claim or defense that arose out of the conduct, transaction,

or occurrence set out – or attempted to be set out – in the

original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Interpreting

Rule 15 in Mayle v. Felix,

(2005), the Supreme

Court noted that: “[s]o long as the original and amended 17 petitions state claims that are tied to a common core of

operative facts, relation back will be in order.” Accordingly,

courts should determine whether “‘the alteration of the original

statement is so substantial that it cannot be said that

defendant was given adequate notice of the conduct, transaction,

or occurrence that forms the basis of the claim.’” Iconics,

Inc. v. Massaro, No. CV 11-11526-DPW,

, at *5 (D.

Mass. Jan. 15, 2016) (quoting 6A Wright, Miller & Kane, Federal

Practice and Procedure § 1497 (2d ed. 1990)). “This analysis

‘is directed to conduct rather than causes of action,’ and new

legal theories may relate back to the original filing where . .

. there is a shared basis in factual circumstances.” Id.

(quoting Zee-Bar, Inc. v. Kaplan,

(D.N.H.

1993)).

With respect to Frederick’s Title VII claim, the analysis

is fairly straightforward. Frederick’s original and amended

Title VII claims plainly arose out of the same “core of

operative facts,” Mayle,

, i.e, DHHS’s refusal to

accommodate Frederick’s request to either privately breastfeed

her son at DHHS’s offices, or be allowed to leave DHHS’s offices

to breastfeed at his nearby day care facility.

Whether Frederick’s ADA claim relates back is a bit more

complicated. “The addition of new claims to an amended pleading 18 does not alone defeat relation back; the question instead is

whether the initial pleading provided a defendant with adequate

notice of the potential new claims.” Quaak v. Dexia, S.A.,

(D. Mass. 2006). Following Frederick’s

EEOC charge and the filing of her original complaint, DHHS was

on notice that Frederick was asserting legal claims arising out

of a particular set of factual circumstances, including

assertions that DHHS discriminated against her based upon her

anxiety and PTSD conditions. Her ADA claim arises out of those

very circumstances, and so relates back. See Zee-Bar,

(“As long as conduct is placed in issue in the

complaint, a proposed amendment applying a new legal theory to

the identified conduct should ordinarily be permitted to relate

back to the original complaint.").

Frederick’s original complaint also referenced her EEOC

charge. The EEOC charge, which was attached as an exhibit,

accused DHHS of failing to comply with the ADA. A letter from

Frederick’s health care provider was also attached to the

original complaint, a letter that Frederick had earlier provided

to DHHS, which states:

[Frederick] should only rely on bottle feeding and using a breast pump occasionally. Katherine should breastfeed as much as possible, to ensure maximum endorphin release to generate feelings of well-being and to minimize anxiety disorder, as well as to 19 maintain her milk supply and to fight her infant’s risk of diabetes, resulting from Kate’s gestational diabetes.

Document No. 1, Exhibit 7, at p. 2. It cannot reasonably be

said, then, that DHHS was not “given adequate notice of the

conduct, transaction, or occurrence that forms the basis of the

claim.” Iconics, Inc. v. Massaro,

, at *5.

Finally, DHHS does not assert that it will be at prejudiced in

defending against Frederick’s ADA claim.

For these reasons, the court finds that Frederick’s ADA

claim relates back to her original complaint and is not time-

barred.

Failure to State a Claim

ADA Claim

DHHS contends that Frederick has not stated an ADA claim

because she has not sufficiently alleged that she requested a

reasonable accommodation from DDHS for her disability.

According to DHHS, Frederick did not allege in either her

original complaint or EEOC charge that she requested to

breastfeed her son as an accommodation for her anxiety or PTSD

disability. Therefore, DHHS says, Frederick’s allegation in her

amended complaint that she requested to breastfeed as an

accommodation for her anxiety or PTSD disability is inconsistent

20 with her prior pleadings and the documents referenced therein,

and cannot be taken as true for purposes of ruling on the motion

to dismiss.

On a motion to dismiss for failure to state a claim, the

plaintiff’s “well-pleaded factual allegations contained in the

complaint” are assumed to be true. San Geronimo Caribe Project,

Inc. v. Acevedo-Vila,

(1st Cir. 2012)

(internal quotations omitted) (citation omitted). Frederick’s

amended complaint alleges that she requested an accommodation

from DHHS with respect to her anxiety and PTSD conditions. See

Compl. at ¶ 20. Whether Frederick can prove that she requested

an accommodation for her anxiety and PTSD conditions is a matter

for resolution at a different stage of the proceedings. For

current purposes, the assertion is presumed to be true.

Accordingly, DHHS’s motion to dismiss Frederick’s ADA claim

is denied.

Title VII “Sex Plus” Claim

Title VII of the Civil Rights Act prohibits employers from

discriminating against employees based on sex with respect to

“compensation, terms, conditions or privileges of employment.”

42 U.S.C. § 2000e-2(a). Frederick purports to allege a “sex

plus” claim, which “refers to the situation where an employer

21 classifies employees on the basis of sex plus another

characteristic.” Chadwick v. Wellpoint, Inc.,

(1st Cir. 2009) (emphasis in original) (internal quotations

omitted). As our circuit court of appeals has explained, “[t]he

terminology may be a bit misleading . . . because the ‘plus’

does not mean that more than simple sex discrimination must be

alleged; rather, it describes the case where not all members of

a disfavored class are discriminated against.”

(internal

quotations omitted).

Frederick purports to be a member of a subclass consisting

of “women with infants who cannot take nutrition from bottles

but instead must breastfeed.” Compl. at ¶ 50. DHHS violated

Title VII, she says, by treating her less favorably than

employees who were not in that subclass. Frederick alleges that

she was treated differently than: (1) breastfeeding mothers

whose children would drink breastmilk from a bottle (who were

permitted to pump breastmilk privately at DHHS); and (2) other

DHHS employees, who were allowed to leave the office during the

work day on their breaks for a variety of personal reasons.

Compl. at ¶ 53.

With respect to Frederick’s allegation that she was treated

differently than DHHS employees “allowed” to leave the premises

during the work day, as the court noted in its order on DHHS’s 22 first motion to dismiss, the facts, as alleged, simply do not

give rise to a disparate treatment claim. Frederick offers

nothing new of substance, and what she realleges does not

support her assertion that other DHHS employees were “allowed”

to leave the premises, while she was not.

When Frederick sought permission to routinely leave the

work premises on an extended break period to breastfeed her

child, she was seeking an exception to a DHHS policy that

required all employees to remain on the premises – employees

were not allowed to leave during breaks. 4 Critically, she fails

to allege that other DHHS employees either: (1) were routinely

permitted to leave for an extended period of time; or (2) were

seeking and receiving permission from DHHS to leave the

premises, while she was refused permission. Frederick’s amended

4 In her EEOC charge, Frederick writes:

I asked why other[] [employees] were allowed to leave the premises to go on walks during their breaks, [and] was told that the policy had always been that employees were not allowed to leave the premises during their breaks, but it had not been enforced. I was informed that DHHS-Conway was now choosing to enforce the policy.

Compl. Exhibit A at p. 9 (emphasis in original).

23 complaint does not plausibly allege disparate treatment of

similarly situated employees.

As for Frederick’s allegations concerning disparate

treatment as compared to lactating female employees who were not

medically required to exclusively breastfeed, Frederick has not

adequately alleged that DHHS treated her differently “at least

in part” because of her sex. Chadwick,

.

Frederick alleges that she was treated unfavorably as compared

to a corresponding subclass of women: women who were not

required to exclusively breastfeed their infants. The “simple

test” of Title VII discrimination, articulated by the Supreme

Court in Los Angeles Department of Water & Power v. Manhart,

(1978), is whether an employer has treated an

employee “in a manner which but for that person’s sex would be

different.” Newport News Shipbuilding & Dry Dock Co. v.

E.E.O.C.,

(1983).

In other words, “regardless of the label given to the

claim, the simple question posed by sex discrimination suits is

whether the employer took an adverse employment action at least

in part because of an employee's sex.” Chadwick,

. Therefore, “gender-plus plaintiffs can never be successful

if there is no corresponding subclass of members of the opposite

gender. Such plaintiffs cannot make the requisite showing that 24 they were treated differently from similarly situated members of

the opposite gender.” Coleman v. B–G Maintenance Management,

(10th Cir. 1997); see also Rolfs v. Home

Depot U.S.A., Inc.,

(D.N.H. 2013)

(“although the protected class need not include all women, the

plaintiff must still prove that the subclass of women was

unfavorably treated as compared to the corresponding subclass of

men.”); King v. Ferguson Enterprises, Inc.,

(N.D. Ga. 2013), aff'd,

(11th Cir.

2014) (“if a woman cannot show that her employer treats the same

subclass of men differently, then gender is not a factor;

moreover, allowing her claim without such evidence would result

in the protection of the characteristic rather than gender.”). 5

5 The court is not persuaded that the Court of Appeals for the First Circuit held otherwise in Chadwick,

, as the court supported its determination in that case by stating:

Given the common stereotype about the job performance of women with children and given the surrounding circumstantial evidence presented by Chadwick, we believe that a reasonable jury could find that WellPoint would not have denied a promotion to a similarly qualified man because he had “too much on his plate” and would be “overwhelmed” by the new job, given “the kids” and his schooling.

(emphasis added).

25 Given that precedent, Frederick’s allegations that she was

treated differently from other lactating women – women whose

children would drink breastmilk from bottles and who were

allowed to pump in private – do not give rise to a Title VII

claim. She has not alleged that her subclass of women was

unfavorably treated as compared to a corresponding subclass of

men. 6 “The drawing of distinctions among persons of one gender

on the basis of criteria that are immaterial to the other, while

in given cases perhaps deplorable, is not the sort of behavior

covered by Title VII.” Martinez v. N.B.C., Inc.,

(S.D.N.Y. 1999).

DHHS’s actions may well have been arbitrary and unfair.

But, “federal law does not protect generally against arbitrary

or unfair treatment in private employment, but only against

actions motivated by listed prejudice such as race, age and

gender. Discrimination is a form of unfairness, but not all

unfairness is discrimination.” Sabinson v. Trustees of

Dartmouth College,

(1st Cir. 2008) (emphasis

6 To the extent Frederick argues that she states a Title VII claim because “only women breastfeed” (pl.’s mem. in supp. of opp. to mot. to dismiss at p. 9), that argument fails because Frederick does not allege that she has been singled out based on her breastfeeding status, but instead based on her inability to bottle-feed her son. 26 added) (internal citations omitted). For these reasons,

Frederick has not sufficiently stated a Title VII claim.

Wrongful Discharge Claim

In order to state a common law claim for wrongful

termination, “a plaintiff must allege facts sufficient to

establish ‘(1) that the termination of employment was motivated

by bad faith, retaliation or malice; and (2) that she was

terminated for performing an act that public policy would

encourage or for refusing to do something that public policy

would condemn.” Document No. 14, at p. 27 (citing Lacasse v.

Spaulding Youth Ctr.,

(2006) (further citation

omitted)). DHHS focuses on the first element of the two-pronged

test, arguing that Frederick’s wrongful discharge claim must be

dismissed because she has not sufficiently alleged that she was

terminated out of bad faith, malice or retaliation. Relying on

the court’s September 2015 order in this action, DHHS argues

that the amended complaint’s allegations establish that

Frederick was terminated because she failed to return to work

after exhausting her FMLA leave.

In support of her wrongful discharge claim, Frederick now

alleges that DHHS refused to provide an accommodation to which

she was legally entitled, and without which she could not return

to work. See, e.g., Compl. at ¶ 20, 27, 39, 41, 42, 45. When 27 she did not return to work, DHHS fired her. See Compl. ¶¶ 23,

25 and Exhibit A at p. 8 (“I certainly wanted to return to work,

I was not given reasonable accommodations that allowed me to do

so.”). Frederick further alleges that DHHS’s refusal to grant

her request for accommodation and her subsequent termination

were motivated by bad faith and malice. Beyond that, however,

Frederick offers scant factual support for a finding of malice,

bad faith or retaliation.

But, accepting Frederick’s allegations as true – as the

court must at this stage — and drawing all reasonable inferences

therefrom in her favor, Frederick’s wrongful discharge claim is

at least minimally sufficient to survive DHHS’s motion to

dismiss, in that, the complaint describes her entitlement to

reasonable accommodations related to her own disabilities (PTSD

and anxiety), vaguely suggests that public policy would

encourage her not to return to work absent accommodations to

which she was legally entitled, and that DHHS fired her in fact

because she insisted on returning only if her disabilities were

accommodated, which she implies constitutes bad faith and

retaliation. The court’s determination takes into account the

early stage of this litigation, as well as both parties’ failure

to meaningfully brief whether the facts as alleged could, as a

matter of law, give rise to a plausible inference of bad faith,

28 malice, or retaliation. While the claim may not survive

dispositive motions practice, the prudent course is to await an

adequately developed record before considering the identified

substantive legal issues.

Conclusion

For the foregoing reasons, as well as those set forth in

DHHS’s memoranda (documents no. 18-1 and 22), DHHS’s motion to

dismiss (document no. 18) count two of the first amended

complaint is GRANTED. DHHS’s motion to dismiss counts one and

three of the first amended complaint is DENIED.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

August 16, 2016

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

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