CONCORD, N.H. (AP) — The New Hampshire Supreme Court was split 2-2 Friday over a woman's nearly nine-year battle to challenge her firing from the state Department of Health and Human Services over breastfeeding, meaning a lower court's decision to dismiss her case stands.
When the court heard the case in January 2020, it lacked a fifth member after its chief justice stepped down the previous summer. Former Attorney General Gordon MacDonald was sworn in as chief justice last week, well over a year after the case was argued.
“I wasn't expecting a tie," said Kate Frederick, who has since worked on legislation in New Hampshire strengthening breastfeeding rights. She added, “It's telling women and families, ‘New Hampshire, we don't even acknowledge you, we don't even care about your issues, we're not going to decide this.'"
Last year, a lawyer for Frederick argued before the state Supreme Court that she was wrongfully discharged from her job in 2012.
Frederick had worked as a child support officer in the department’s office in Conway and was fired that September over, she said, whether, when and where she could breastfeed her newborn son, Devon, now 8.
The department said Frederick was terminated after she failed to return to work after exhausting her leave under the Family and Medical Leave Act.
Frederick, who now lives in Strafford, Vermont, filed a wrongful discharge lawsuit against the department in 2014 in federal court. Her case was dismissed in 2017 after a judge ruled that the department was immune from the lawsuit.
Frederick refiled her lawsuit in the New Hampshire Superior Court in 2018, and the department challenged it again. A judge initially ruled that the case should go forward. The state moved for reconsideration. A judge ended up dismissing the lawsuit, saying it was barred by a three-year statute of limitations.
The attorney general's office also argued that as a state employee protected by a collective bargaining agreement, Frederick would not have the ability to bring such a claim. It said she was limited in her remedies to asking her union to file grievances and to bringing a charge of unfair labor practices before the state Public Employee Relations Board.
“In this case, the court is evenly divided," the state Supreme Court wrote in its ruling Friday. “Two members of the court agree that the plaintiff’s claim should be dismissed; two members of the court would reverse the trial court’s dismissal and remand for further proceedings."
In such a situation, the court follows the practice established by the U.S. Supreme Court that “the judgment of the court below therefore stands in full force," the decision said.
Frederick's lawyer, Benjamin King, said in a statement, “No avenue exists for further appeal. Disappointingly, a jury will never determine whether the State Department of Health and Human Services acted illegally when it fired Kate for insisting on the right to breastfeed her infant during the workday, because her infant depended on breastfeeding for his nutrition."
Frederick is a student at the Vermont Law School, where she worked on a policy advancing breastfeeding rights on campus. In New Hampshire, she founded the New Hampshire Breastfeeding Rights Coalition, worked on several bills and testified at legislative hearings this year on the protection of breastfeeding from discriminatory employee practices. She has authored a guide for legislators on pregnancy and lactation rights in the workplace.