Elizabeth Swirka v. Liberty Mutual Insurance Co.

2019 DNH 035

• Court: District Court, D. New Hampshire
• Decided: March 7, 2019
• Docket: 18-cv-854-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elizabeth Swirka

v. Civil No. 18-cv-854-JD Opinion No. 2019 DNH 035 Liberty Mutual Insurance Co.

O R D E R

Elizabeth Swirka brings state and federal law claims of

discrimination and retaliation against her former employer,

Liberty Mutual Insurance Company. Liberty Mutual moves to

dismiss Swirka’s state law claims as untimely filed under RSA

354-A:21-a. Swirka objects.

Background

In a letter dated January 19, 2013, Swirka filed charges of

discrimination against Liberty Mutual with the New Hampshire

Commission on Human Rights.1 On April 9, 2018, the Commission

issued findings of probable cause on Swirka’s charges. The

Commission sent “Orders of Notice” to Swirka and Liberty Mutual

by certified mail on June 1, 2018.

1 The charges were “dual filed” with the Equal Employment Opportunity Commission. Liberty Mutual filed a petition of removal, pursuant to RSA

354-A:21-a, I, in Strafford County Superior Court on September

14, 2018.2 The petition and complaint were docketed as

“Complaint-Civil” by the superior court. Liberty Mutual then

filed a notice of removal in this court on September 25, 2018.

Swirka moved to remand the case to state court on the

ground that the removal was untimely in light of the Commission

proceedings. Liberty Mutual objected. The court denied the

motion to remand but noted that the unusual procedure under RSA

354-A:21-a was an imperfect fit with the federal removal

procedures. Doc. 10, at *3.

Because of the unusual procedural posture of the case,

Swirka had not filed a complaint in state court. Instead, the

court case was initiated by the complaint filed by Liberty

Mutual in superior court. Liberty Mutual then removed the case

that it initiated in state court. Liberty Mutual had not filed

an answer to that complaint.

To address the procedural abnormalities in the case, the

court ordered Swirka to file an amended complaint. In the

amended complaint, Swirka brings state law claims for gender,

age, and disability discrimination and retaliation under RSA

354-A and federal law claims for gender discrimination under

2 The petition is dated September 13, 2018.

2 42 U.S.C. § 2000e, et seq. (“Title VII”), age discrimination

under 29 U.S.C. § 621, et seq. (“ADEA”), and disability and

retaliation under 42 U.S.C. § 12112, et seq. (“ADA”). In

response, Liberty Mutual filed a partial motion to dismiss.

Discussion

Liberty Mutual moves to dismiss the claims brought under

RSA 354-A (Counts I through IV) that are based on conduct that

occurred before September 13, 2015, on the ground that they are

time barred under RSA 354-A:21-a. Swirka objects, arguing that

the three-year limitations period in RSA 354-A:21-a does not

apply in the circumstances of this case.

A party may move to dismiss an action for “failure to state

a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). Grounds for a motion under Rule 12(b)(6) include a

defense that the claims are barred by the applicable statute of

limitations. Abdallah v. Bain Capital LLC, 752 F.3d 114, 119

(1st Cir. 2014). In considering a motion to dismiss under Rule

12(b)(6), the court accepts as true all of the properly pleaded

facts and draws reasonable inferences in favor of the nonmoving

party. Lemelson v. Bloomberg L.P., 903 F.3d 19, 23 (1st Cir.

2018).

3 A. RSA 354-A

To initiate discrimination claims under RSA 354-A, “an

aggrieved person” must file a complaint with the Commission

“within 180 days after the alleged act of discrimination.” RSA

354-A:21, III. The Commission is then required to “close each

case or commence adjudicative proceedings on such case under RSA

354-A:21 within 24 months after the filing date of the

complaint.”3 RSA 354-A:21, IV. The procedures for the

Commission to follow in adjudicating claims brought before it

are provided in RSA 354-A:21, II.

Instead of adjudicating the case before the Commission,

“[a]ny party alleging to be aggrieved by any practice made

unlawful under this chapter [plaintiff]” may “bring a civil

action for damages or injunctive relief or both, in the superior

court for the county in which the alleged unlawful practice

occurred or in the county of residence of the party.” RSA 354-

A:21-a, I. If a plaintiff chooses to proceed in court rather

than before the Commission, she must bring the civil action

within the period of 180 days after filing a timely complaint

with the Commission but “not later than 3 years after the

alleged unlawful practice occurred.” Id.

3Swirka represents that few cases actually conform to that time line and that defendants, including Liberty Mutual in this case, generally waive that requirement.

4 A defendant may also choose to proceed in court rather than

before the Commission. “Any party alleged to have committed any

practice made unlawful under this chapter [defendant]” may

“remove said complaint to superior court for trial.” Id. A

defendant must wait to remove the complaint until the

investigating commissioner makes a determination of probable

cause. Id. Neither the plaintiff nor the defendant may proceed

in superior court “if a hearing before the commission has begun

or has concluded.” Id.

B. Application

There is no issue in this case about the timeliness of

Swirka’s complaint filed with the Commission. There is also no

issue that the three-year limitation period imposed by RSA 354-

A:21-a, I would not have applied if the case had proceeded

before the Commission. Further, Swirka did not bring a civil

action in superior court, which would have triggered the three-

year limitation period. Instead, Liberty Mutual removed the

proceeding from the Commission to superior court on September

14, 2018, by filing Swirka’s complaint, which initiated the

Commission proceedings, with a petition for removal.

In support of its motion, Liberty Mutual asserts that

removal of the Commission proceeding triggered the three-year

limitation period, which bars Swirka’s claims to the extent they

5 are based on actions that occurred more than three years before

removal. In support, Liberty Mutual relies on cases that

address the limitations period when the plaintiff brings suit in

court.4 That, however, is not the situation in this case.

Instead, the issue raised by Liberty Mutual is whether the

limitations period applies when the defendant removes the

proceeding from the Commission to court. As is explained above,

RSA 354-A:21-a imposes a three-limitation period when a

plaintiff files a civil action in state court. Liberty Mutual

cites no case in which that limitation period was applied to bar

claims in a proceeding removed from the Commission to court by

the defendant.

Based on the plain language of RSA 354-A:21-a, I, the

three-year limitation period does not apply in the circumstances

of this case. Therefore, Liberty Mutual provides no grounds to

dismiss Swirka’s claims as untimely filed.

4 Liberty Mutual relies on the decision in Salisbury v. Home Depot, USA, Inc., 2014 WL 6750648 (D.N.H. Dec. 1, 2014). In that case, however, the plaintiff brought suit in state court. The case was not removed from the Commission to state court by the defendant. After the plaintiff brought suit in state court, the defendant removed the case to this court. Therefore, the application of the limitation period in Salisbury has no bearing on the situation presented here.

6 Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 27) is denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

March 7, 2019

cc: Lorenzo R. Cabantog, Esq. Nancy Richards-Stower, Esq. Danielle Y. Vanderzanden, Esq.