Six-year-old Devon was restless and full of questions Tuesday morning as he awaited the start of a civil hearing in Merrimack County Superior Court in Concord.
His mother, Kate Frederick, is accusing her former employer, the New Hampshire Department of Health and Human Services, of firing her for trying to breast-feed Devon during the workday when he was a newborn. Her case has played out for years in local courts and at the State House, attracting media attention from around New Hampshire.
“Why is he taking our photo?” Devon asked earnestly while looking up at his mom, who was seated next to him on a courtroom bench. “What’s a photojournalist?”
As Devon took in the new sights and sounds, Frederick readied herself for the next chapter in her fight against the state, in both her case and to make laws surrounding breast-feeding clearer for employees and employers.
Her son was just a baby when she first sued DHHS. Devon celebrated his sixth birthday in May, and yet Frederick’s legal battles persist as she tries to recoup years of lost benefits and wages from the state.
“To expect a breast-feeding mother to wait this long to get a decision, it’s not just,” Frederick, now a resident of Strafford, Vt., told the Monitor.
This spring, Frederick filed an amended lawsuit in Merrimack County Superior Court, where she brought one claim of wrongful discharge against her former employer. She is asking for a jury trial but DHHS is arguing the case should be thrown out.
Frederick, a former child support officer, initially sued DHHS in U.S. District Court in Concord in 2014, arguing the agency fired her instead of giving her a secluded place at its Conway offices to breast-feed her newborn son or allowing her to go to the boy’s nearby daycare to do the same. She said Devon refused to drink from a bottle for the first 4 ½ months after he was born, and that breast-feeding “was the only means” of feeding him.
A judge dismissed the case a year later, ruling in late 2015 that the 11th Amendment barred Frederick from suing a state agency in federal court, unless the agency waived immunity. The department’s refusal to allow her to breast-feed her child in a private room at work or a short distance away at his daycare was “stingy” policy but not in violation of federal law, Judge Steven McAuliffe said at the time.
Frederick said Tuesday that bringing suit was her only option after DHHS refused to provide accommodations, thereby forcing her to choose between feeding her child or keeping her job. She maintains she had no remedies under the state union’s collective bargaining agreement or the personnel rules despite being a contracted employee.
“The only other remedy they offered me was I could resign and not get unemployment and not get rehired, because if you resign someone else gets your slot,” she said, referring to a reduction in force policy that was in effect at the time. “It was very unreasonable to expect me to give away my income, my health insurance, my livelihood, and then put myself in a position where I couldn’t get rehired by the employer in the future.”
Lawyers for DHHS disagree with Frederick, saying she could have filed her grievances and not brought suit. Before Judge Richard McNamara on Tuesday, they argued for the case to be dismissed.
“She had much more remedies available to her opposed to litigation that has gone on for many, many years,” said attorney Lindsey Courtney.
Courtney questioned whether Frederick should be able to bring a wrongful discharge claim given that she was not an at-will employee but a contracted employee subject to the state’s personnel rules and collective bargaining agreement.
“What is the benefit of a contract if state employees can run off and sue for tort and damages instead of pursuing the grievance procedure in the contract?” Courtney asked.
An at-will employee can generally be fired at any time for any reason; however, state law allows for an at-will employee to bring a claim for wrongful discharge if the employee can show the employer has terminated him or her out of bad faith, malice or retaliation for performing an act that public policy would encourage, said attorney Ben King, who is representing Frederick.
One broader question remains: Can any contracted employee bring a similar claim?
“That question is unresolved by the New Hampshire Supreme Court but we contend that the state of New Hampshire, all employers in New Hampshire, owe their employees a duty not to fire them in contravention of public policy,” King said in an interview after Tuesday’s hearing.
He said Frederick’s case fits the bill because DHHS fired her for wanting to breast-feed her child, while at the same time publicly advocating for mothers to do just that.
Frederick is now enrolled in Vermont Law School’s restorative justice program because of the personal hurdles she has faced and because of her desire to help other similarly situated mothers. She said she has also built partnerships with national advocates, including American University professor Adrienne Pine, who sparked a national debate when she breast-fed her infant daughter in front of her “Sex, Gender and Culture” class several years ago.
Judge McNamara did not decide Tuesday whether to allow Frederick’s civil lawsuit to proceed to a jury; he took the matter under advisement and will issue an order at a later date.
(Alyssa Dandrea can be reached at 369-3319 or at adandrea@cmonitor.com.)