UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Cynthia Netska, Plaintiff

v. Case No. 22-cv-265-SM Opinion No.

Hubbell, Inc., Defendant

O R D E R

Cynthia Netska brings this action against the parent

company (Hubbell, Inc.) of her former employer, alleging that

she was the victim of unlawful gender-based discrimination, in

violation of Title VII of the Civil Rights Act of 1964. She

also advances a claim under New Hampshire common law, asserting

that she was wrongfully discharged from her job. Hubbell moves

to dismiss the latter claim, saying Netska’s complaint fails to

plausibly allege the essential elements of a viable cause of

action. See generally Fed. R. Civ. P. 12(b)(6). For the

reasons discussed, that motion is granted.

Standard of Review

When considering a motion to dismiss, the court accepts all

well-pleaded facts alleged in the complaint as true, disregarding legal labels and conclusions, and resolving

reasonable inferences in the plaintiff’s favor. See Galvin v.

U.S. Bank, N.A.,

(1st Cir. 2017). To avoid

dismissal, the complaint must allege sufficient facts to support

a plausible claim for relief. See Ashcroft v. Iqbal,

(2009). To satisfy the “plausibility standard,” the

factual allegations in the complaint, along with reasonable

inferences drawn from those allegations, must show more than a

mere possibility of liability – that is, “a formulaic recitation

of the elements of a cause of action will not do.” Bell Atl.

Corp. v. Twombly,

(2007). See also Lyman v.

Baker,

, 359–60 (1st Cir. 2020) (“For the purposes

of our 12(b)(6) review, we isolate and ignore statements in the

complaint that simply offer legal labels and conclusions or

merely rehash cause-of-action elements.”) (cleaned up).

In other words, the complaint must include well-pled (i.e.,

non-conclusory, non-speculative) factual allegations as to each

of the essential elements of a viable claim which, if assumed to

be true, would allow the court to draw the reasonable and

plausible inference that the plaintiff is entitled to the relief

sought. See Tasker v. DHL Retirement Savings Plan,

(1st Cir. 2010).

2 Background

Accepting the complaint’s factual allegations as true – as

the court must at this juncture – the relevant background is as

follows. Cynthia Netska was employed as a “Human Resources

Business Partner” by Burndy LLC, a subsidiary of the defendant

Hubbell, Inc. When the Director of Human Resources left the

company, Netska sought a promotion to that position. She was

the only internal candidate to submit an application. She was

not afforded the opportunity to formally interview for the

position, which was eventually filled by an external male

candidate with, at best, comparable qualifications for the job.

In March of 2021, before filling the vacant position, Kevin

Ryan (Vice President of Operations for Burndy) and Garth Warner

(Vice President of Human Resources for another Hubbell

subsidiary and the acting Director of Human Relations for Burndy

until that position was filled) were on a telephone conference

call with more than 65 employees, including Netska. Both men

answered questions regarding the “unsuccessful and

disappointing” search for a qualified human resources director,

Complaint (document no. 1) at para. 40, and both men commented

that there had been “no good internal candidates” for the

position,

Ryan’s comments singled out Netska as the sole

3 internal candidate.

at para. 42. According to the

complaint,

Peers of Netska immediately responded to the harmful accusations by both Ryan and Warner and, knowing that Netska had applied for the position, expressed how horrified they were at what they had just heard.

Netska followed up with an email to Warner stating how embarrassed, disrespected, and distraught she had felt after being humiliated by him and Ryan in front of her peers with whom she had worked so hard to earn their respect.

at paras. 43-44.

Roughly three months later, in June of 2021, the company

hired a man as its new Director of Human Resources. According

to Netska, he was hired at one level above that at which the

position had been posted and he was offered a significantly

higher salary, a higher bonus, and greater long-term incentives

than had been posted. As mentioned, Netska was not afforded the

opportunity to interview for the vacant position (though she did

have several informal conversations with various corporate

officers about her interest in, and qualifications for, the

vacant human resources position).

On July 23, 2021, approximately four months after the

conference call on which Netska was embarrassed by company

4 officials, and about one month after the company filled the

vacant human resources position with another candidate, Netska

announced her resignation from the company. According to the

complaint, Netska was “feeling completely unsupported in her

current role and [had heard] nothing of the alleged growth

opportunities” the company allegedly promised to provide to her.

Complaint at para. 50. Those adverse working conditions, says

Netska, compelled her to resign and they form the basis of her

wrongful discharge claim.

Discussion

Under New Hampshire common law, to prevail on a claim for

wrongful discharge, a plaintiff must establish three essential

elements:

(1) that her employment was terminated; and

(2) that the termination of her employment was motivated by bad faith, retaliation, or malice; and

(3) that her employment was terminated because she performed an act that public policy would encourage or because she refused to do something that public policy would condemn.

See Karch v. BayBank FSB,

(2002). Here, of

course, Netska’s employment was not terminated. She resigned.

But, says Netska, she was compelled to do so by intolerable

5 working conditions and was, therefore, “constructively

discharged.”

A. Element One of Wrongful Discharge: Termination.

To be sure, constructive discharge can satisfy the

“termination” element of a wrongful discharge claim. See Karch,

. But, to prove that element, Netska must

establish that Hubbell’s actions rendered her working conditions

“so difficult and intolerable that a reasonable person would

feel forced to resign.”

As the New Hampshire Supreme Court

has noted, “constructive discharge is not established by showing

relatively minor abuse of an employee. Rather, the adverse

working conditions must generally be ongoing, repetitive,

pervasive, and severe.” Lacasse v. Spaulding Youth Ctr.,

(2006) (citation and internal punctuation omitted)

(emphasis supplied). It is a high threshold. See, e.g., Suarez

v. Pueblo Int’l, Inc.,

(1st Cir. 2000) (“The

workplace is not a cocoon, and those who labor in it are

expected to have reasonably thick skins - thick enough, at

least, to survive the ordinary slings and arrows that workers

routinely encounter in a hard, cold world. Thus, the

constructive discharge standard, properly applied, does not

guarantee a workplace free from the usual ebb and flow of power

relations and inter-office politics.”).

6 Even liberally construed, the factual allegations in

Netska’s complaint do not meet that high threshold. According

to the complaint,

After not being given a chance to even go through the interview process and being humiliated by the executives on a department-wide call, Netska knew that her credibility within Hubbell had been undermined and that she had no future or growth opportunities with the company. That realization forced her to look for new work.

Memorandum in Opposition (document no. 10) at 4 (emphasis

supplied). Netska asserts that the foregoing factual

allegations – humiliation, loss of credibility, and perceived

lack of opportunity - “meet the standard for constructive

discharge.”

The court disagrees.

While Netska plainly considered Hubbell’s response to her

application for the vacant human resources position to have been

inappropriate, demeaning, and personally embarrassing, she has

failed to allege facts sufficient to warrant the conclusion that

the conditions of her employment were so intolerable, so severe,

and so pervasive that a person of ordinary firmness would have

seen no plausible alternative except to resign. See Gallagher

v. Unitil Serv. Corp.,

,

, at *7

(D.N.H. Sept. 17, 2015). See generally Posteraro v. RBS

Citizens, N.A.,

(D.N.H. 2016) (noting

7 that a plaintiff must rely upon objective facts, not subjective

concerns or beliefs, to support a viable wrongful discharge

claim). Pointing to one incident during which she was

humiliated and/or embarrassed by management is simply

insufficient. Nor is it sufficient to vaguely assert a “loss of

credibility” or “lack of growth opportunities” without alleging

actual examples that support such subjective beliefs. At least

as alleged in her complaint, the facts upon which Netska bases

her claim are quintessentially those described by the court of

appeals as “the usual ebb and flow of power relations and inter-

office politics” that employees “routinely encounter in a hard,

cold world.” Suarez,

. While Netska was well

within her rights to seek other employment under the

circumstances described, her decision was not one forced upon

her by intolerable or severe working conditions that reasonable

people of ordinary firmness would not abide.

Parenthetically, the court notes that the plaintiff in a

wrongful termination action must typically identify current

conditions of employment that are intolerable, severe, and

pervasive. It is insufficient for a plaintiff to rely upon

speculative assumptions about potential future conditions of

employment. See generally Posteraro,

.

Here, Netska seems to rely upon such speculation regarding her

8 future conditions of employment, alleging that her credibility

had been undermined and she “had no future or growth

opportunities.” Memorandum in Opposition at 4. But, the

complaint points to no actual events illustrating Netska’s

alleged loss of credibility or its effect on her then-present

working environment, nor does it identify any specific lost

growth opportunities. See, e.g., Complaint at para. 44 (“[After

the teleconference,] Netska followed up with an email to Warner

stating how embarrassed, disrespected, and distraught she had

felt after being humiliated by him and Ryan in front of her

peers, peers with whom she had worked so hard to earn their

respect. It was at this point that Netska felt so dismissed,

belittled, humiliated, and disrespected by leadership that she

began to look for alternative work opportunities.”) (emphasis

supplied). In other words, Netska seems to concede that she

decided to leave the company almost immediately after the

telephone conference during which she was embarrassed, rather

than wait to see how the conditions of her employment would be

affected going forward and then try to address with her employer

any that she felt were intolerable – conduct that is typically

required of a plaintiff in her situation. See generally Gerald

v. Univ. of Puerto Rico,

(1st Cir. 2013)

(“Constructive discharge typically refers to harassment so

severe and oppressive that staying on the job while seeking

9 redress - the rule save in exceptional cases - is so intolerable

that a reasonable person would have felt compelled to resign.

. . . The standard to meet is an objective one, it cannot be

triggered solely by an employee’s subjective beliefs, no matter

how sincerely held.”) (citations and internal punctuation

omitted) (emphasis supplied).

In light of the foregoing, Netska’s complaint fails to

plausibly allege the first element of her wrongful termination

claim: that she was constructively discharged. While Netska’s

subjective impression that she had been improperly overlooked

for a promotion she deserved, or her concern that the company no

longer provided growth opportunities for her, were certainly

sufficient reasons for her to consider a change of employment,

those circumstances were not legally sufficient to establish

that her voluntary resignation amounted to a constructive

discharge.

B. Element Three: Retaliation and Public Policy.

Netska’s wrongful termination claim also fails for another

reason: her complaint does not allege sufficient facts to

plausibly warrant the conclusion that the (constructive)

termination of her employment was causally related to her having

performed an act that public policy would encourage or her

10 having refused to do something that public policy would condemn.

In other words, the complaint does not allege facts suggesting

that Hubbell imposed intolerably difficult working conditions

upon her in retaliation for her having engaged in laudatory

conduct that is supported by New Hampshire public policy.

On this particular point, Netska’s argument is somewhat

confusing, but it appears to be this: Hubbell retaliated against

her in response to her having expressed interest in the

promotion to human resources director. And, says Netska, it is

at least conceivable that “applying for a promotion is an act

that public policy would encourage.” Memorandum in Opposition

(document no. 10) at 5. Netska’s entire argument on this

“public policy” element is as follows:

Hubbell argues that Netska also fails to meet the third prong of a wrongful termination claim because “applying for an internal promotion is not protected by public policy.” However, Hubbell cites no case law that says that, and undersigned counsel has found no case law that opines one way or the other. Hubbell only cites a statement of New Hampshire common law that “[p]ublic policy does not protect an employee’s expression of disagreement with a management decision.” That statement of law does not foreclose the idea that applying for a promotion is “an act that public policy would encourage.”

Id. at 4-5 (citations omitted).

11 According to Netska, it is (at least arguably) against New

Hampshire public policy for an employer to (constructively) fire

an employee for having applied for a promotion. But, as she

acknowledges, she can cite no precedent to support that

assertion. Instead, she says it is “an open question of law

whether applying for an internal promotion is protected by

public policy.” Memorandum in Opposition at 4. Simply positing

that it is conceivable that some undefined public policy goal is

promoted by encouraging employees to seek promotions is

insufficient. At a minimum, Netska must articulate the precise

public policy she believes would be advanced by affording

protection to employees who seek a promotion and identify the

source of that policy. See generally Leeds v. BAE Sys.,

(2013) (noting that the public policy contravened

by the wrongful discharge can be based on statutory or

nonstatutory policy); Cilley v. New Hampshire Ball Bearings,

Inc.,

, 405–06 (1986) (same).

Moreover, even assuming New Hampshire’s public policy does

encourage employees to seek promotions, the complaint fails to

plausibly allege a causal connection between Netska’s

application for the vacant position and what she claims were

intolerable working conditions. That is, she has not adequately

alleged that her employer retaliated against her in some

12 unacceptable way because she sought the promotion. What is

alleged in the complaint is that she sought the promotion, but

her employer did not consider her qualified for the job and

inappropriately made those conclusions public, in a way that

hurt and embarrassed Netska.

In short, Netska’s complaint fails to plausibly allege that

intolerable conditions of employment were imposed upon her in

retaliation for her having engaged in conduct encouraged by

public policy. Of course, if the decision not to promote Netska

was animated by some improper discriminatory animus (say, gender

bias), her remedy lies in the claim she advances under Title

VII. See generally Faulkner v. Dartmouth Hitchcock Med. Ctr.,

, at *8,

(D.N.H. Aug. 12, 2015)

(noting that “a common law claim for wrongful termination

focuses on conduct in which the plaintiff engaged (or refused to

engage), and not on age, ethnicity, or physical or mental

impairments”) (emphasis in original); Parker v. MVM, Inc.,

*2–3,

(D.N.H. 2006) (“The common law

cause of action for wrongful discharge is not the proper means

by which to remedy a discharge that was motivated by someone’s

status or physical condition. Instead, that cause of action is

properly invoked only when an employee is discharged in response

13 to his or her having engaged in a narrow category of conduct.”)

(citation omitted).

In the absence of any precedent supporting plaintiff’s

theory of liability, the lack of any developed argument

explaining how her decision to apply for a promotion implicates

New Hampshire public policy, and the dearth of factual

allegations pointing to a causal connection between her conduct

and the allegedly intolerable conditions of her employment, the

court is constrained to conclude that a properly instructed jury

could not plausibly rule in favor of Netska on the third element

of a wrongful termination claim. That is to say, she cannot

demonstrate that the allegedly intolerable conditions of her

employment were imposed upon her in retaliation for having

engaged in conduct encouraged by New Hampshire public policy.

Conclusion

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

defendant’s memoranda in support of its motion to dismiss

(documents no. 8-1 and 11), the court concludes that Netska’s

complaint fails to plausibly allege the essential elements of a

viable claim that she was wrongfully terminated. As to the

first element – that her employment was actually terminated –

the complaint does not allege sufficient facts to warrant the

14 conclusion that she was “constructively discharged.” The

complaint also fails to plausibly allege the third element of

such a claim: that Netska’s alleged termination was in response

to, or in retaliation for, her having engaged in conduct that

public policy seeks to promote.

Because Netska’s complaint fails to plausibly allege two of

the essential elements of a viable common law claim for wrongful

termination defendant’s Motion to Dismiss Count II of

plaintiff’s complaint (document no. 8) is necessarily granted.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 17, 2023

cc: Counsel of Record

15