Montemerlo v. Goffstown School District

Filing 18

///ORDER granting 12 Motion to Dismiss. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Nancy Montemerlo
v.

Case No. 12-cv-13-PB
Opinion No. 2013 DNH 050

Goffstown School
District SAU #19, et al

MEMORANDUM AND ORDER
Nancy Montemerlo, a former teacher in the Goffstown School
District, brings employment discrimination claims under state
and federal law.

She alleges that her school’s principal, its

human resources director, and other unknown school district
employees violated her constitutional right to equal protection
under the Fourteenth Amendment when they discriminated against
her on the basis of a physical disability by failing to
accommodate her diabetes.1

Two of the defendants, Principal

James Hunt and Human Resources Director Carol Kilmister, move to
dismiss the equal protection claim (Count VII) pursuant to Fed.
1

Montemerlo also alleges violations of New Hampshire’s antidiscrimination statute, negligent training or supervision,
wrongful discharge, failure to make necessary accommodations
under the Americans with Disabilities Act, wrongful denial of
disability leave, and violations of New Hampshire’s
Whistleblowers’ Protection Act. Those claims are not the
subject of defendants’ motion or this order.

R. Civ. P. 12(c).

After construing the plaintiff’s factual

allegations in the light most favorable to her, I dismiss Count
VII because the pleadings are insufficient to support an equal
protection claim.

I.

BACKGROUND

Goffstown School District hired Nancy Montemerlo in 2000 as
a Student Support Teacher.

In 2005, she began teaching Family

and Consumer Science to seventh and eighth graders at the
Mountain View Middle School.

She is certified to teach

elementary education and family and consumer science.
also a certified social worker.
Diabetes and spinal stenosis.

She is

Montemerlo suffers from Type 2
She also experiences some

processing delays resulting from a stroke.

To control her

diabetes, Montemerlo uses an insulin pump to adjust her blood
glucose levels.
In March 2011, Montemerlo asked her immediate supervisor,
Nicole Doherty (who is not a defendant in this case), whether
she could use her insulin pump in the classroom in front of
students.

Doherty told Montemerlo that doing so would be

unacceptable, and Doherty instead offered to find a teacher to
2

cover Montemerlo’s class when Montemerlo left the classroom to
use the pump.

Doherty, however, never followed up with

Montemerlo.
Sometime later, Montemerlo contacted Kilmister, the Human
Resources Director, “for guidance as to how to test and use the
Pump in [her] classroom with students present.”
Doc. No. 1-1.

Compl. ¶ 33,

Kilmister responded that she would need a letter

from Montemerlo’s physician in order to answer Montemerlo’s
questions about accommodations.

Id.

On April 5, 2011,

Montemerlo’s physician provided Kilmister with a letter
explaining Montemerlo’s treatment needs and stating that
“monitoring and treatment of her diabetes should not interfere
with her teaching.”

Id. at ¶ 34.

On April 7, 2011, Kilmister

sent Montemerlo an email stating that, based on the physician’s
letter, the school district would not offer Montemerlo any
accommodations.

Following this incident, she “again asked for

guidance as to how she should conduct her testing because of the
fact that she is continually in the presence of students,” and
the “school district never responded.”

Id. ¶¶ 36-37.

Montemerlo does not state that she again approached Kilmister or
that Kilmister denied any subsequent request for an
3

accommodation.2

II.

STANDARD OF REVIEW

“The standard for evaluating a Rule 12(c) motion for
judgment on the pleadings is essentially the same as that for
deciding a Rule 12(b)(6) motion.”

Pasdon v. City of Peabody,

417 F.3d 225, 226 (1st Cir. 2005).

The plaintiff must make

factual allegations sufficient to “state a claim to relief that
is plausible on its face.”
544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

A claim is facially plausible when it pleads

“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.

The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

2

Although Montemerlo identifies other incidents that she claims
were wrongful - including contentions that she was denied an
additional personal day in exchange for coming in during a break
to clean her classroom; was denied a transfer to a fourth grade
teaching position that she requested for health-related reasons;
and was constructively terminated after filing a separate charge
of discrimination in 2008 – the complaint does not state that
either Kilmister or Hunt played any role in those incidents.
4

In deciding such a motion, the court views the facts
contained in the pleadings in the light most favorable to the
nonmovant and draws all reasonable inferences in his favor.
Zipperer v. Raytheon Co., Inc., 493 F.3d 50, 53 (1st Cir. 2007).
“Judgment on the pleadings is proper ‘only if the uncontested
and properly considered facts conclusively establish the
movant's entitlement to a favorable judgment.’”

Id. (quoting

Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir.
2006)).

III.

ANALYSIS

To state a viable equal protection claim, a plaintiff “must
allege that he was intentionally treated differently from others
similarly situated.”

Toledo v. Sanchez, 454 F.3d 24, 34 (1st

Cir. 2006) (citing Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000)).

Because the physically disabled are not a

suspect class for equal protection purposes, Montemerlo must
also show that there was no rational basis for the defendants’
conduct.

Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S.

356, 367 (2001); Toledo, 454 F.3d at 33-34.

5

Montemerlo fails to satisfy any of the elements of an equal
protection claim.

First, she has not demonstrated the requisite

intent to discriminate.

See Personnel Adm’r of Mass v. Feeney,

442 U.S. 256, 274 (1979); Soto v. Flores, 103 F.3d 1056, 1067
(1st Cir. 1997).

She baldly states in her complaint that

Kilmister’s conduct was “willful and wanton,” but she does not
offer any facts to substantiate her conclusory allegation.
“Threadbare recitals of the elements of a cause of action . . .
do not suffice.”

Iqbal, 556 U.S. at 678.

Montemerlo also fails to show that she was treated
differently from any non-disabled employees in similar
circumstances.

See Toledo, 545 F.3d at 34.

“A similarly

situated person is one that is roughly equivalent to the
plaintiff in all relevant respects.”

Estate of Bennett v.

Wainwright, 548 F.3d 155, 166 (1st Cir. 2008)) (citations and
quotations omitted).

Montemerlo asserts that the teachers who

took breaks to smoke or pump breast milk were similarly situated
to her.

She does not, however, allege that she requested and

was denied breaks to use her insulin pump, or that she took
breaks and was reprimanded.

She states only that she asked for

“guidance” on how to use her insulin pump in front of her
6

students, and that Kilmister concluded based on Montemerlo’s
physician’s note that no accommodation was necessary.

Thus, on

the face of the complaint, Montemerlo cannot demonstrate that
she was treated differently from any similarly situated person
in a comparable situation.
Finally, even assuming that Montemerlo had made a request
to take breaks to adjust her insulin pump and that Kilmister
refused, Montemerlo fails to demonstrate that Kilmister’s
refusal was irrational.

See Toledo, 545 F.3d at 34.

Montemerlo

alleges that Kilmister refused to “offer Plaintiff an
accommodation based upon Plaintiff’s physician’s letter.”
Compl. ¶ 35, Doc. No. 1-1.

Montemerlo did not attach the letter

to her complaint, but summarized it as stating that “treatment
of her diabetes should not interfere with her teaching.”
¶ 34.

Id. at

That statement can reasonably be interpreted to mean that

Montemerlo did not require an accommodation because of her
diabetes.

Indeed, the plaintiff has admitted that the statement

could be read to mean that she “did not require an accommodation
because the pump did not need to be used during school hours.”
Doc. No. 13-1.

Although Montemerlo claims that “[t]he more

rational reading” of the doctor’s statement is that Montemerlo’s
7

condition would not prevent her from being able to teach her
students, she does not argue that Kilmister’s interpretation was
irrational.

Thus, the physician’s letter gave Kilmister a

rational basis to refuse Montemerlo’s request for an
accommodation even if she had requested an opportunity to take
breaks.

IV.

CONCLUSION

This is not a case in which the defendants denied the
plaintiff’s request to use her insulin pump was denied;
Montemerlo never asked Kilmister or Hunt for periodic breaks to
leave the classroom to use her insulin pump, nor was she ever
reprimanded for taking such breaks.

Instead, her claim arose

from an apparent misunderstanding between the parties about the
meaning of the doctor’s note:

Montemerlo believed the note

indicated a need for accommodations, and Kilmister interpreted
it as indicating that no accommodations were necessary.
readings were reasonable.

Both

Instead of clarifying the situation,

however, Montemerlo brought suit.

Disputes that “arise out of

mutual misunderstanding, misinterpretation and overreaction . .
. do not give rise to an inference of discrimination.”
8

Dartmouth Review v. Dartmouth College, 889 F.2d 13, 18 (1st Cir.
1989) (quoting Johnson v. Legal Servs. of Ark., Inc., 813 F.2d
893, 896 (8th Cir. 1987)), overruled on other grounds by
Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d 61
(1st Cir. 2004).

Accordingly, the defendants’ motion to dismiss

(Doc. No. 12) is granted.3
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
April 2, 2013
cc:

Stephen T. Martin, Esq.
Brian J.S. Cullen, Esq.

3

Hunt is named in Count VII, but Montemerlo failed to identify
any facts to support her claim that Hunt violated her equal
protection rights. Accordingly, Count VII is also dismissed as
it relates to Hunt. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
9