Hirth v. Wal-Mart Stores East, LP et al
Filing
22
///ORDER granting 10 Motion to Dismiss. So Ordered by Judge Paul J. Barbadoro.(jna) Modified on 2/25/2016 to add: ///(vln).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mary E. Hirth
v.
Case No. 15-cv-400-PB
Opinion No. 2016 DNH 037
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 42 U.S.C. § 1983 claims (Counts III, IV, and V); a
42 U.S.C. § 1981 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 WalMart 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
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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, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.”
Id.
This
plausibility standard “asks for more than a sheer possibility
that a defendant has acted unlawfully,” id., but “simply calls
for enough fact to raise a reasonable expectation that discovery
will reveal evidence” of wrongdoing.
Twombly, 550 U.S. at 556.
I employ a two-step approach in deciding a Rule 12(b)(6)
motion.
See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
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(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.”
Id.
(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.
Id.
III.
ANALYSIS
Wal-Mart challenges Hirth’s 42 U.S.C. § 1983 claims (Counts
III, IV, and V); 42 U.S.C. § 1981 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.
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.
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A.
Section 1983 Claims
In Counts IV, V, and X, Hirth brings claims pursuant to 42
U.S.C. § 1983, 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, 421 F.3d 1, 7 (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, 655 F.3d 61, 68 (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, 684 F.3d 226, 231 (1st Cir. 2012)
(citations and internal punctuation omitted).
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More
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, 655 F.3d at 68 (internal
alterations and punctuation omitted).
The plaintiff “bears the
burden of proving that a private party’s acts constitute state
action.”
Mead, 684 F.3d at 231.
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
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color of state law.
See Alberto San, Inc. v. Consejo De
Titulares Del Condominio San Alberto, 522 F.3d 1, 4 (1st Cir.
2008); Wojcik v. Town of North Smithfield, 874 F. Supp. 508, 517
(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, 457 U.S. 991, 1004 (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 42 U.S.C. § 1981.
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, 860 F.
Supp. 2d 118, 128 (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, 2008 WL
4681628, at *2 (D.N.H. Oct. 20, 2008); see Landrigan v. City of
Warwick, 628 F.2d 736, 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
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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., 154 N.H. 246, 248 (2006).
“The
first prong focuses on the nature of the employer’s actions,”
Duhy v. Concord Gen. Mut. Ins. Co., 2009 DNH 074, 27 (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., 925 F. Supp. 95,
98 (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, 136 N.H. 76, 84 (1992) (citations and
punctuation omitted).
This is one of those cases.
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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.”
original).
Frechette, 925 F. Supp. at 98 (emphasis in
Accordingly, although ordinarily “the issue of
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whether a public policy exists is a question for the jury,”
Short, 136 N.H. at 84, 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.
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.
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