CONCORD — A former employee of the Department of Health and Human Services, who says she was fired for wanting to breastfeed her newborn at work, will finally get her day in court after a six-year legal battle.

Merrimack County Superior Court Judge Richard McNamara on Thursday denied the state’s motion to dismiss the lawsuit by Katherine Frederick, a former child support officer now studying law in Vermont.

Frederick, formerly of Tamworth, was at the forefront of an unsuccessful effort to pass legislation in 2016 that would require employers to accommodate breastfeeding mothers in the workplace. Business leaders proposed a compromise for new mothers to pump breast milk at work, but not breastfeed there.

Unable to reach a consensus, the House Commerce Committee scrapped the bill and created the Advisory Council on Pregnancy and Lactation, charged with making recommendations by November 2019. Frederick is listed as a member, representing the N.H. Breastfeeding Rights Coalition.

In his Dec. 5 ruling, McNamara writes that Frederick has presented a reasonable theory that she was fired because of her supervisor’s “outward hostility towards the idea of her breastfeeding.”

“It is at least a jury question whether, as plaintiff alleges, that public policy encourages a mother to breastfeed her child, particularly where breastfeeding is imperative for the child’s health,” according to McNamara.

The law surrounding wrongful termination states that employers cannot fire someone for “performing an act public policy would encourage.”

“We have requested a jury trial and a jury trial is scheduled for September of 2019,” said Frederick’s attorney, Benjamin King with Douglas, Leonard and Garvey in Concord. “There have been no settlement discussions.”

Heading for trial

Court rules require mediation before a trial, so there will be a settlement conference at some point before September, but there’s a good chance the lawsuit will move forward. The state has fought the wrongful discharge claim at every turn since the lawsuit was first filed four years ago.

Frederick first filed a complaint with the federal Equal Employment Opportunity Commission. The EEOC declined to file suit on its own, but issued what’s called “a notice of right to sue” in the summer of 2014.

With that notice in hand, Frederick filed suit in U.S. District Court, Concord, that fall. The case worked its way through federal court for three years, until it was dismissed in May 2017.

The state successfully cited the 11th amendment to the U.S. Constitution, which limits the circumstances under which a state resident can sue his or her state in federal court.

In May of this year, the lawsuit was filed in Merrimack County Superior Court.

Attorneys for the N.H. Department of Justice have argued that the state enjoys immunity from such lawsuits, that Frederick did not file on time, and that she was a union member who should have taken her case through the grievance process, not the courts.

“The state has been invoking every procedural argument that it can invoke in order to get the case dismissed,” said King. “Now, more than four years after Kate originally brought suit, we are finally at the point where we can start litigating this case on its merits.”

Short-lived employment

Frederick was hired in November 2011, became pregnant in early 2012 and was fired in September 2012.

She was diagnosed with gestational diabetes and anemia and her doctor ordered a modified work schedule. She was ordered by her supervisor to work “harder and faster,” according to the suit.

Her son was born in May 2012. After receiving permission from her doctor, Frederick returned to work in July. Her lawsuit claims she was advised by her medical provider that, “given the state of her health, breastfeeding her child would be important for his health and hers.”

She returned to work in July and asked her supervisor if she could use her break time to breastfeed her son at his daycare facility nearby, or that she be allowed to breastfeed in a lactation room at the workplace.

Those requests were denied, and she was offered the use of a private lactation room on site to pump breast milk into a bottle and bring it to the infant. The two sides could not reach an agreement; Frederick did not return to work when her medical leave expired and she was fired.

“Kate has been and continues to be a strong advocate for breastfeeding rights,” said King. “We believe a jury will find that public policy encourages a mother to breastfeed her child, particularly when breast feeding is essential to the child’s nutrition. A mother should not have to choose between the life of her child on one hand and her job on the other.”

Neither Frederick nor the DOJ attorney defending the state were available for comment.

dsolomon@unionleader.com