United States District Court, D. Connecticut
Kerry Considine, Plaintiff: Allison Wright, Janson Wu, LEAD
ATTORNEYS, Gary D Buseck, Gay & Lesbian Advocates &
Defenders, Boston, MA.
Brookdale Senior Living, Inc., Defendant: Matthew K. Curtin,
Patricia E. Reilly, Littler Mendelson, P.C.-NH, CT, New
ON DEFENDANT'S MOTION TO DISMISS AND/OR TO COMPEL
A. Bolden, United States District Judge.
Kerry Considine, has filed a Complaint against her employer,
Brookdale Senior Living, Inc. (" Brookdale" ),
alleging that it improperly denied her same-sex spouse health
and dental insurance coverage. She claims that
Brookdale's actions violate Title VII of the Civil Rights
Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e
et seq., the Equal Pay Act, 29 U.S.C. § 206(d),
and the Connecticut Fair Employment Practices Act ("
CFEPA" ), Conn. Gen. Stat. § 46a-60. Am. Compl.
¶ ¶ 33-43, ECF No. 19. She seeks a declaration that
Brookdale violated all three statutes and that it must,
" as a matter of law, [ ] make spousal health and dental
insurance coverage benefits available to eligible employees
with same-sex spouses on the same terms as made available to
eligible employees with different-sex spouses."
Id. at Prayers for Relief ¶ 1. She also seeks
an injunction enjoining Brookdale from denying same-sex
spousal health and dental benefits available to its
employees. Id. at Prayers for Relief ¶ 2. While
her First Amended Complaint also seeks attorney's fees
and costs, at oral argument held on August 18, 2015, she
agreed to withdraw these claims. Id. at Prayers for
Relief ¶ 3.
the Court is a motion submitted by Brookdale seeking to
dismiss the case and compel arbitration. Mot. To Dismiss, ECF
No. 28. For the reasons that follow, the
Second Motion to Dismiss and/or Compel Arbitration, ECF No.
28, is GRANTED IN PART in that the Court finds that the
matter must be sent to arbitration for a determination on the
question of arbitrability. The remainder of the relief
requested in the Second Motion to Dismiss is DENIED AS MOOT.
Considine alleges that she was hired by Brookdale in 2012 as
a " licensed physical therapist" and currently
works as an " Ancillary Services Manager" in three
Brookdale facilities located in West Hartford and
Farmingdale, Connecticut. Am. Compl. ¶ ¶ 12-13, ECF
No. 19. She alleges that as part of her compensation for this
job, she receives health and dental insurance, self-insured
through Brookdale and administered through United Healthcare.
Id. ¶ ¶ 15-16. She claims that Brookdale
offers " qualified employees" the option of
obtaining health and dental insurance coverage for their
spouses, and that Ms. Considine is a " qualified
employee" for the purposes of obtaining such coverage.
Id. ¶ ¶ 17-18.
Considine alleges that she married her female spouse, Renee
Considine, in Massachusetts on November 1, 2013. Id.
¶ 19. She claims that in October and November 2013, she
asked Brookdale twice whether her female spouse, Renee
Considine, could be added to and covered by her health and
dental insurance plans as her spouse. Id. ¶
¶ 21?23. Ms. Considine alleges that Brookdale responded
to both of her inquiries and explained that it would not
provide coverage because her spouse was the same sex.
Considine claims that she filed a charge of discrimination
with the Equal Employment Opportunity Commission ("
EEOC" ) on January 17, 2014. Id. ¶ 24. She
alleges that she obtained a right to sue letter from the EEOC
on October 1, 2014 and subsequently filed this lawsuit within
the timeframe required by section 2000e-5(f)(1) of title 42
of the United States Code. Id. ¶ ¶ 9-10.
Considine also claims that after she filed her discrimination
charge with the EEOC but before she received her right to sue
letter, Brookdale informed its employees on February 19, 2014
that effective March 1, 2014, it would voluntarily provide
same-sex spouses with health and dental insurance coverage.
Id. ¶ 25. Ms. Considine also alleges that
Brookdale believes it is not legally required to offer
insurance benefits to same-sex spouses and has chosen to do
so voluntarily. Id. ¶ ¶ 26?28.
Accordingly, she claims that Brookdale also believes it may
rescind health and dental insurance benefits it currently
provides to same-sex spouses at any time. Id. She
claims that this position makes the benefits she currently
receives " uncertain[ and] insecure," which "
constitutes continued and ongoing discrimination based on
sex." Id. ¶ 29-31.
THE AGREEMENT TO ARBITRATE
indicates that Ms. Considine signed an agreement to arbitrate
certain disputes arising from her employment and has attached
the agreement to its Second Motion to Dismiss for the
Court's consideration. Ex. A, Employment Binding
Arbitration Agreement, ECF No. 28-2 [hereinafter "
Arbitration Agreement" ]. Ms. Considine does not object
to the accuracy or authenticity of the arbitration agreement
provided by Brookdale. She also does not dispute that she
signed the agreement.
agreement provides that " [a]s a condition of [her]
employment [ ], [Ms. Considine] agree[s] that any controversy
or claim arising out of or relating to [her] employment
relationship with [Brookdale] or the termination of that
relationship, must be submitted for final and binding