Netska v. Hubbell, Inc.

Filing 14

///ORDER granting #8 Motion to Dismiss for Failure to State a Claim as to Count II. 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 by Judge Steven J. McAuliffe.(lw)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Cynthia Netska,
Plaintiff
v.

Case No. 22-cv-265-SM
Opinion No. 2023 DNH 006

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,

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disregarding legal labels and conclusions, and resolving
reasonable inferences in the plaintiff’s favor.

See Galvin v.

U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017).

To avoid

dismissal, the complaint must allege sufficient facts to support
a plausible claim for relief.
662, 678 (2009).

See Ashcroft v. Iqbal, 556 U.S.

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.”
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell Atl.

See also Lyman v.

Baker, 954 F.3d 351, 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, 621 F.3d 34,

38-39 (1st Cir. 2010).

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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, id.

Ryan’s comments singled out Netska as the sole

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internal candidate.

Id. 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.
Id. 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

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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, 147 N.H. 525, 536 (2002).
course, Netska’s employment was not terminated.

Here, of

She resigned.

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

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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.
147 N.H. at 536.

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.”

Id.

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., 154

N.H. 246, 249 (2006) (citation and internal punctuation omitted)
(emphasis supplied).

It is a high threshold.

See, e.g., Suarez

v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (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.”).
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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.”

Id.

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., 2015 DNH 179, 2015 WL 5521794, at *7
(D.N.H. Sept. 17, 2015).

See generally Posteraro v. RBS

Citizens, N.A., 159 F. Supp. 3d 277, 291 (D.N.H. 2016) (noting
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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 interoffice politics” that employees “routinely encounter in a hard,
cold world.”

Suarez, 229 F.3d at 54.

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, 159 F. Supp. 3d at 277.

Here, Netska seems to rely upon such speculation regarding her
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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, 707 F.3d 7, 25 (1st Cir. 2013)
(“Constructive discharge typically refers to harassment so
severe and oppressive that staying on the job while seeking
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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
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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.”
(document no. 10) at 5.

Memorandum in Opposition

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).

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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., 165

N.H. 376, 379 (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., 128 N.H. 401, 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
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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.,

2015 WL 4759425, at *8, 2015 DNH 157 (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., 2006
WL 1724359 *2–3, 2006 DNH 70 (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

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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
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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

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