N.H. Breastfeeding Case Headed for Jury Trial

Concord — A Merrimack County judge ruled last week that a wrongful termination lawsuit brought against the New Hampshire Department of Health and Human Services by a former employee who requested breastfeeding accommodations should go before a jury.

Lawyers for the state agency had filed a motion to dismiss the civil claim filed by Kate Frederick, who was fired in September 2012 due to unresolved issues concerning when and where she could breastfeed her newborn son during the workday. Following a hearing Nov. 20, Judge Richard McNamara sided with Frederick, ruling that the case has legal standing to move forward.

“Citing to her supervisors outward hostility toward the idea of her breastfeeding, Plaintiff presents a cognizable theory that she was fired for seeking to breastfeed her child per her medical provider’s recommendation,” McNamara wrote, noting that the matter is within the court’s jurisdiction. “It is at least a jury question whether as plaintiff alleges, ‘public policy encourages a mother to breastfeed her child, particularly where breastfeeding is imperative for the child’s health.’ ”

Frederick said her son, Devon, refused to drink from a bottle for the first 4½ months after he was born, and that breastfeeding “was the only means” of feeding him. She was also advised by medical professionals that given her own health diagnoses, to include gestational diabetes and anemia, breastfeeding her child would be important for her health, too, according to court documents.

Frederick, a former child support officer who now lives in Strafford and attends Vermont Law School, requested in late-July — two months after giving birth — to return to work at the state’s Conway office on a modified half-day schedule, allowing her to take a 30-minute break to breastfeed her child. She had asked for either a secluded place at the office or permission to go to the boy’s daycare, which was close by. But her supervisor refused the request, allowing only for a lactation room on site where Frederick could pump breast milk into a bottle for the child.

DHHS ultimately terminated Frederick’s employment in a letter dated Sept. 21, 2012. However, the issue at hand is still unresolved more than six years later.

Attempting to recoup lost wages and benefits from the state, Frederick first took her case against DHHS to U.S. District Court in Concord. But the case there hit a dead end; a judge threw it out on 11th Amendment grounds, ruling that Frederick could not sue a state agency in federal court unless the agency waived immunity.

She re-filed her wrongful discharge claim in state court — specifically Merrimack County Superior Court — this past May.

Lawyers for DHHS argued in their motion to dismiss that Frederick failed to file suit in a timely manner. The statute of limitations provides for claims to be brought within three years of the “injury.” McNamara disagreed with DHHS that Frederick’s suit was not timely, noting it was brought within two years; “she simply did so in the wrong court.”

While employed with DHHS, Frederick was under a contract and therefore subject to the state’s personnel rules and collective bargaining agreement. Given that she was afforded protections not available to at-will employees, state lawyers questioned whether Frederick had legal grounds to bring a wrongful discharge claim.

McNamara said Wednesday he was not swayed by the state’s argument.

“... Defendant’s reasoning that access to common-law tort remedies should be foreclosed to contract employees merely because they enjoy a ‘comprehensive set of protections’ not afforded to at-will employees, alone, is unconvincing,” he wrote.

The case is scheduled for trial in September 2019 in Concord.