UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary E. Hirth

v. Case No. 15-cv-400-PB Opinion No.

Wal-Mart Stores East, L.P.

MEMORANDUM AND ORDER

Mary E. Hirth brought this action against her former

employer, Wal-Mart Stores East, alleging that Wal-Mart

discriminated against her on the basis of her gender. Hirth’s

complaint includes ten counts, only five of which are at issue

here: three

claims (Counts III, IV, and V); a

claim (Count VI), and a state-law wrongful

discharge claim (Count X). Wal-Mart has moved to dismiss these

counts, arguing that they fail to state viable claims for

relief.

I. BACKGROUND Hirth, a Caucasian American woman, began working for Wal-

Mart in 2008 at the company’s North Conway, New Hampshire store.

Doc. No. 1 at 3. Hirth was hired as an overnight stocker and,

despite receiving positive yearly reviews and pay raises, was never promoted. She remained an overnight stocker until July

2014, when she was terminated.

Hirth and a female co-worker were fired several days after

they were found working atop steel warehouse racking, allegedly

in violation of the company’s safety policy. Id. at 4-5. Hirth

apparently concedes that she and her co-worker were on top of

the racking, but claims that she was never informed (until her

termination) that her conduct violated Wal-Mart’s rules. Id.

She further states that her supervisor-on-duty, Mark Ayers, saw

Hirth on top of the racking but did not tell her to get down, or

explain that her conduct might result in discipline. Hirth

worked the rest of that week without learning that she had acted

improperly, before eventually being fired.

About a month later, Hirth received a text message from her

former Wal-Mart co-worker, “Lorraine,” stating that “Store

Planner, Dave (male) had his workers’ [sic] on top of the steel

[racking] . . . .” Id. at 7. According to Lorraine, Dave said

that “he would take the hit if it was an OSHA violation,”

because climbing on the racking was “the only way to get the job

done.” Id. Dave retained his position with the company, even

though Hirth and her female co-worker were fired for similar

conduct. Id.

Around that same time, Hirth asked to be reinstated to her

former position. When Wal-Mart denied her request, she filed

2 complaints with the Equal Employment Opportunity Commission

(“EEOC”) and the New Hampshire Commission for Human Rights. The

EEOC then issued a right to sue letter, and Hirth timely filed

this action. Id. at 7. In her complaint, Hirth alleges that

she was wrongfully terminated, discriminated against on the

basis of her gender, subjected to unfair disciplinary practices,

and exposed to unequal terms of employment. Wal-Mart has moved

to dismiss several of Hirth’s claims pursuant to Federal Rule of

Civil Procedure 12(b)(6).

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, a plaintiff must allege

sufficient facts to “state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal,

(2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007).

A claim is facially plausible if it provides “factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

This

plausibility standard “asks for more than a sheer possibility

that a defendant has acted unlawfully,”

but “simply calls

for enough fact to raise a reasonable expectation that discovery

will reveal evidence” of wrongdoing. Twombly,

.

I employ a two-step approach in deciding a Rule 12(b)(6)

motion. See Ocasio-Hernandez v. Fortuno-Burset,

, 12

3 (1st Cir. 2011). First, I screen the complaint for statements

that “merely offer legal conclusions couched as fact or

threadbare recitals of the elements of a cause of action.”

(citations, internal punctuation, and alterations omitted). I

then accept as true all non-conclusory factual allegations and

the reasonable inferences drawn therefrom, and determine whether

the claim is plausible.

III. ANALYSIS Wal-Mart challenges Hirth’s

claims (Counts

III, IV, and V);

claim (Count VI), and wrongful

discharge claim (Count X).1 It first argues that the Section

1983 claims fail because Hirth did not allege that Wal-Mart was

acting under color of state law when it allegedly discriminated

against her. Second, it contends that the Section 1981 count

fails because Hirth did not assert that she was discriminated

against on the basis of race. And third, Wal-Mart challenges

Hirth’s wrongful discharge claim by arguing that she failed to

allege that she was fired for doing something that public policy

would encourage, or refusing to do something that public policy

would condemn. I address each argument in turn.

1 Hirth has also brought claims alleging Title VII violations (Counts I and II), and a violation of New Hampshire’s Law Against Discrimination (Count VII). Because Wal-Mart has not moved to dismiss those claims, I do not address them here. 4 A. Section 1983 Claims

In Counts IV, V, and X, Hirth brings claims pursuant to

, alleging that Wal-Mart violated her

constitutional rights by (1) firing her on the basis of her

gender, (2) refusing to promote Hirth because of her gender, and

(3) failing to train and supervise its employees regarding

gender-based discrimination. Wal-Mart has moved to dismiss

these claims, arguing that Hirth has not alleged an essential

element of a Section 1983 claim, namely that Wal-Mart acted

under color of state law. I agree.

Section 1983 provides a private right of action against a

defendant who, “under color of state law, deprives another of

rights secured by the Constitution or by federal law.” Redondo-

Borges v. U.S. Dep’t of HUD,

(1st Cir. 2005). To

state a viable Section 1983 claim, “a plaintiff must show both

that the conduct complained of transpired under color of state

law and that a deprivation of federally secured rights ensued.”

Santiago v. Puerto Rico,

(1st Cir. 2011).

Non-government actors generally are not subject to Section

1983 claims. In limited circumstances, however, “the conduct of

a private party may be fairly attribut[ed] to the State . . .

and therefore may constitute action under color of state law.”

Mead v. Independence Ass’n,

(1st Cir. 2012)

(citations and internal punctuation omitted). More

5 specifically, “[a] private party may become a state actor if

[it] assumes a traditional public function when performing the

challenged conduct; or if the challenged conduct is coerced or

significantly encouraged by the state; or if the state has so

far insinuated itself into a position of interdependence with

the private party that it was a joint participant in the

challenged activity.” Santiago,

(internal

alterations and punctuation omitted). The plaintiff “bears the

burden of proving that a private party’s acts constitute state

action.” Mead,

.

Hirth’s Section 1983 claims fail because she has not

alleged that Wal-Mart, a private company, should be treated as a

state actor given the facts of this case. Even drawing every

reasonable inference in Hirth’s favor, she does not claim that

Wal-Mart assumed a traditional public function when firing her;

or that the state “significantly encouraged” Wal-Mart to

discriminate against Hirth; or that Wal-Mart and the state are

interdependent such that the state was a joint participant in

Wal-Mart’s alleged misconduct. Instead, Hirth merely asserts

that Wal-Mart acted “under color of law” by “us[ing] an alleged

Federal and/or State Safety violation as a basis to terminate”

Hirth. Doc. No. 1 at 11 (presumably referring to the

Occupational Safety and Health Act). This allegation, standing

alone, is insufficient to show that Wal-Mart was acting under

6 color of state law. See Alberto San, Inc. v. Consejo De

Titulares Del Condominio San Alberto,

(1st Cir.

2008); Wojcik v. Town of North Smithfield,

(D.R.I. 1995) (“Action by a private party in compliance with a

statute is not sufficient to justify a characterization of that

party as a ‘state actor.’”). Thus, Wal-Mart’s choice to fire

Hirth cannot “be deemed to be that of the State,” Blum v.

Yaretsky,

(1982), and I grant Wal-Mart’s

motion to dismiss Counts IV, V, and X.

B. Section 1981 Claim

Hirth next brings a claim pursuant to

.

Doc. No. 1 at 13. To make out a viable Section 1981 claim,

Hirth must show “that the alleged discrimination took place

because of [her] race.” King v. Friends of Kelly Ayotte,

(D.N.H. 2012). Accordingly, “[t]he absence of

any allegation of [race-based] discrimination is fatal” to a

Section 1981 claim. Dacey v. Steiner, No. 08-cv-212-PB,

, at *2 (D.N.H. Oct. 20, 2008); see Landrigan v. City of

Warwick,

, 739 n.1 (1st Cir. 1980). Hirth’s Section

1981 claim fails here because she has not alleged that she was

subjected to racial discrimination. Instead, Hirth claims only

that Wal-Mart discriminated against her because of her

gender/sex. Doc. No. 1 at 13. The absence of any allegation of

7 race-based discrimination is fatal to Hirth’s claim, and

warrants dismissal of Count VI.

C. Wrongful Discharge Claim

Finally, Hirth alleges that she was wrongfully discharged

in violation of New Hampshire law. Doc. No. 1 at 10-11. To

make out a viable wrongful discharge claim, a plaintiff must

show that (1) her termination 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.

Lacasse v. Spaulding Youth Ctr.,

(2006). “The

first prong focuses on the nature of the employer’s actions,”

Duhy v. Concord Gen. Mut. Ins. Co.,

(citations

and punctuation omitted), while the second prong “focus[es] on

the acts of the employee and on their relationship to public

policy, not on the mere articulation of a public policy by the

employee.” Frechette v. Wal-Mart Stores, Inc.,

(D.N.H. 1995). “[O]rdinarily the issue of whether a public

policy exists is a question for the jury, [but] at times the

presence or absence of such a public policy is so clear that a

court may rule on its existence as a matter of law.” Short v.

Sch. Admin. Unit No. 16,

(1992) (citations and

punctuation omitted). This is one of those cases.

8 Here, Hirth asserts that she was fired for performing an

act that public policy would support, namely “in good faith and

as permitted by her supervisors/employers for the period of

August of 2008 to July 21, 2014; [Hirth] rightfully was allowed

to be atop the warehouse racking when performing her job

duties.” Doc. No. 1 at 10. Although this claim is difficult to

understand, Hirth seems to argue that public policy encourages

an employee to do anything that her employer asks or permits her

to do. Id. at 10-11; see Doc. No. 11-1 at 3.

Under the circumstances of this case, Hirth’s proffered

public policy cannot support a viable wrongful discharge claim.

First, Hirth has not explained why public policy wound encourage

an employee in Hirth’s position to climb the warehouse racking –

at best, it seems that public policy would be indifferent with

respect to that potentially unsafe workplace behavior. Second,

to the extent that Hirth argues that she was fired for complying

with her supervisor’s instructions, and following “usual custom

and practice” at Wal-Mart, Doc. No. 11-1 at 3, her argument is

unpersuasive. As courts in this district have recognized, “[i]f

public policy encouraged an at-will employee to follow only

those rules actually known by the employee, employees could

insulate themselves from other policies simply by remaining

oblivious to them.” Frechette,

(emphasis in

original). Accordingly, although ordinarily “the issue of

9 whether a public policy exists is a question for the jury,”

Short,

, the absence of Hirth’s proffered public

policy is sufficiently clear that I may reject her position as a

matter of law. I therefore grant Wal-Mart’s motion to dismiss

Count III.2

IV. CONCLUSION

For the reasons set forth above, defendant’s motion to

dismiss (Doc. No. 10) is granted.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

February 25, 2016

cc: Robert Young, Esq. Ronald Schneider, Jr., Esq. Talesha L. Caynon, Esq.

2 In her objection to Wal-Mart’s motion to dismiss, Hirth requested leave to amend her complaint. Doc. No. 11-1 at 5; see also Doc. No. 18 at 4. Pursuant to Local Rule 15.1, “a party who moves to amend a filing shall (i) attach the proposed amended filing to the motion to amend, (ii) identify in the motion or a supporting memorandum any new factual allegations, legal claims, or parties, and (iii) explain why any new allegations, claims, or parties were not included in the original filing.” Because Hirth has not yet complied with these procedural requirements, her request is denied without prejudice. If Hirth wishes to move to amend her complaint, she may do so in accordance with the applicable rules. 10