Montemerlo v. Goffstown School Dist.

2013 DNH 050

• Court: District Court, D. New Hampshire
• Decided: April 1, 2013
• Docket: 12-cv-13-PB
• Status: Published

Opinion

Montemerlo v . Goffstown School Dist. 12-cv-13-PB 4/1/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Nancy Montemerlo

v. Case N o . 12-cv-13-PB Opinion N o . 2013 DNH 050 Goffstown School District SAU #19, et al

MEMORANDUM AND ORDER

Nancy Montemerlo, a former teacher in the Goffstown School

District, brings employment discrimination claims under state

and federal law. She alleges that her school’s principal, its

human resources director, and other unknown school district

employees violated her constitutional right to equal protection

under the Fourteenth Amendment when they discriminated against

her on the basis of a physical disability by failing to

accommodate her diabetes.1 Two of the defendants, Principal

James Hunt and Human Resources Director Carol Kilmister, move to

1 Montemerlo also alleges violations of New Hampshire’s anti- discrimination statute, negligent training or supervision, wrongful discharge, failure to make necessary accommodations under the Americans with Disabilities Act, wrongful denial of disability leave, and violations of New Hampshire’s Whistleblowers’ Protection Act. Those claims are not the subject of defendants’ motion or this order. dismiss the equal protection claim (Count VII) pursuant to Fed.

R. Civ. P. 12(c). After construing the plaintiff’s factual

allegations in the light most favorable to her, I dismiss Count

VII because the pleadings are insufficient to support an equal

protection claim.

I. BACKGROUND

Goffstown School District hired Nancy Montemerlo in 2000 as

a Student Support Teacher. In 2005, she began teaching Family

and Consumer Science to seventh and eighth graders at the

Mountain View Middle School. She is certified to teach

elementary education and family and consumer science. She is

also a certified social worker. Montemerlo suffers from Type 2

Diabetes and spinal stenosis. She also experiences some

processing delays resulting from a stroke. To control her

diabetes, Montemerlo uses an insulin pump to adjust her blood

glucose levels.

In March 2011, Montemerlo asked her immediate supervisor,

Nicole Doherty (who is not a defendant in this case), whether

she could use her insulin pump in the classroom in front of

students. Doherty told Montemerlo that doing so would be

2 unacceptable, and Doherty instead offered to find a teacher to

cover Montemerlo’s class when Montemerlo left the classroom to

use the pump. Doherty, however, never followed up with

Montemerlo.

Sometime later, Montemerlo contacted Kilmister, the Human

Resources Director, “for guidance as to how to test and use the

Pump in [her] classroom with students present.” Compl. ¶ 3 3 ,

Doc. N o . 1-1. Kilmister responded that she would need a letter

from Montemerlo’s physician in order to answer Montemerlo’s

questions about accommodations. Id. On April 5 , 2011,

Montemerlo’s physician provided Kilmister with a letter

explaining Montemerlo’s treatment needs and stating that

“monitoring and treatment of her diabetes should not interfere

with her teaching.” Id. at ¶ 3 4 . On April 7 , 2011, Kilmister

sent Montemerlo an email stating that, based on the physician’s

letter, the school district would not offer Montemerlo any

accommodations. Following this incident, she “again asked for

guidance as to how she should conduct her testing because of the

fact that she is continually in the presence of students,” and

the “school district never responded.” Id. ¶¶ 36-37.

Montemerlo does not state that she again approached Kilmister or

3 that Kilmister denied any subsequent request for an accommodation.2

II. STANDARD OF REVIEW

“The standard for evaluating a Rule 12(c) motion for

judgment on the pleadings is essentially the same as that for

deciding a Rule 12(b)(6) motion.” Pasdon v . City of Peabody,

417 F.3d 225, 226 (1st Cir. 2005). The plaintiff must make

factual allegations sufficient to “state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v . Twombly, 550 U.S.

544, 570 (2007). A claim is facially plausible when it pleads

“factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v .

2 Although Montemerlo identifies other incidents that she claims were wrongful - including contentions that she was denied an additional personal day in exchange for coming in during a break to clean her classroom; was denied a transfer to a fourth grade teaching position that she requested for health-related reasons; and was constructively terminated after filing a separate charge of discrimination in 2008 – the complaint does not state that either Kilmister or Hunt played any role in those incidents.

4 Iqbal, 556 U.S. 6 6 2 , 678 (2009) (citations omitted).

In deciding such a motion, the court views the facts

contained in the pleadings in the light most favorable to the

nonmovant and draws all reasonable inferences in his favor.

Zipperer v . Raytheon Co., Inc., 493 F.3d 5 0 , 53 (1st Cir. 2007).

“Judgment on the pleadings is proper ‘only if the uncontested

and properly considered facts conclusively establish the

movant's entitlement to a favorable judgment.’” Id. (quoting

Aponte–Torres v . Univ. of P.R., 445 F.3d 5 0 , 54 (1st Cir.

2006)).

III. ANALYSIS

To state a viable equal protection claim, a plaintiff “must

allege that he was intentionally treated differently from others

similarly situated.” Toledo v . Sanchez, 454 F.3d 2 4 , 34 (1st

Cir. 2006) (citing Village of Willowbrook v . Olech, 528 U.S.

562, 564 (2000)). Because the physically disabled are not a

suspect class for equal protection purposes, Montemerlo must

also show that there was no rational basis for the defendants’

conduct. Bd. of Trustees of Univ. of Ala. v . Garrett, 531 U.S.

356, 367 (2001); Toledo, 454 F.3d at 33-34.

5 6 Montemerlo fails to satisfy any of the elements of an equal

protection claim. First, she has not demonstrated the requisite

intent to discriminate. See Personnel Adm’r of Mass v . Feeney,

442 U.S. 256, 274 (1979); Soto v . Flores, 103 F.3d 1056, 1067

(1st Cir. 1997). She baldly states in her complaint that

Kilmister’s conduct was “willful and wanton,” but she does not

offer any facts to substantiate her conclusory allegation.

“Threadbare recitals of the elements of a cause of action . . .

do not suffice.” Iqbal, 556 U.S. at 678.

Montemerlo also fails to show that she was treated

differently from any non-disabled employees in similar

circumstances. See Toledo, 545 F.3d at 3 4 . “A similarly

situated person is one that is roughly equivalent to the

plaintiff in all relevant respects.” Estate of Bennett v .

Wainwright, 548 F.3d 155, 166 (1st Cir. 2008)) (citations and

quotations omitted). Montemerlo asserts that the teachers who

took breaks to smoke or pump breast milk were similarly situated

to her. She does not, however, allege that she requested and

was denied breaks to use her insulin pump, or that she took

breaks and was reprimanded. She states only that she asked for

“guidance” on how to use her insulin pump in front of her

7 students, and that Kilmister concluded based on Montemerlo’s

physician’s note that no accommodation was necessary. Thus, on

the face of the complaint, Montemerlo cannot demonstrate that

she was treated differently from any similarly situated person

in a comparable situation.

Finally, even assuming that Montemerlo had made a request

to take breaks to adjust her insulin pump and that Kilmister

refused, Montemerlo fails to demonstrate that Kilmister’s

refusal was irrational. See Toledo, 545 F.3d at 3 4 . Montemerlo

alleges that Kilmister refused to “offer Plaintiff an

accommodation based upon Plaintiff’s physician’s letter.”

Compl. ¶ 3 5 , Doc. N o . 1-1. Montemerlo did not attach the letter

to her complaint, but summarized it as stating that “treatment

of her diabetes should not interfere with her teaching.” Id. at

¶ 3 4 . That statement can reasonably be interpreted to mean that

Montemerlo did not require an accommodation because of her

diabetes. Indeed, the plaintiff has admitted that the statement

could be read to mean that she “did not require an accommodation

because the pump did not need to be used during school hours.”

Doc. N o . 13-1. Although Montemerlo claims that “[t]he more

rational reading” of the doctor’s statement is that Montemerlo’s

8 condition would not prevent her from being able to teach her

students, she does not argue that Kilmister’s interpretation was

irrational. Thus, the physician’s letter gave Kilmister a

rational basis to refuse Montemerlo’s request for an

accommodation even if she had requested an opportunity to take

breaks.

IV. CONCLUSION

This is not a case in which the defendants denied the

plaintiff’s request to use her insulin pump was denied;

Montemerlo never asked Kilmister or Hunt for periodic breaks to

leave the classroom to use her insulin pump, nor was she ever

reprimanded for taking such breaks. Instead, her claim arose

from an apparent misunderstanding between the parties about the

meaning of the doctor’s note: Montemerlo believed the note

indicated a need for accommodations, and Kilmister interpreted

it as indicating that no accommodations were necessary. Both

readings were reasonable. Instead of clarifying the situation,

however, Montemerlo brought suit. Disputes that “arise out of

mutual misunderstanding, misinterpretation and overreaction . .

. do not give rise to an inference of discrimination.”

9 Dartmouth Review v . Dartmouth College, 889 F.2d 1 3 , 18 (1st Cir.

1989) (quoting Johnson v . Legal Servs. of Ark., Inc., 813 F.2d

893, 896 (8th Cir. 1987)), overruled on other grounds by

Educadores Puertorriquenos En Accion v . Hernandez, 367 F.3d 61

(1st Cir. 2004). Accordingly, the defendants’ motion to dismiss

(Doc. N o . 12) is granted.3

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 2 , 2013

cc: Stephen T . Martin, Esq. Brian J.S. Cullen, Esq.

3 Hunt is named in Count V I I , but Montemerlo failed to identify any facts to support her claim that Hunt violated her equal protection rights. Accordingly, Count VII is also dismissed as it relates to Hunt. See Ashcroft v . Iqbal, 556 U.S. 6 6 2 , 678 (2009) (citations omitted).