United States District Court, D. Connecticut
MEMORANDUM AND ORDER
Michael P. Shea, U.S.D.J.
Plaintiff Olatutu Oni-Orisan has brought race discrimination, disability discrimination, and retaliation claims against her former employer, Defendant Hartford Dispensary (the “Dispensary”), a private non-profit organization. The Dispensary now moves under Fed.R.Civ.P. 12(b)(1) to dismiss Count One of Oni-Orisan’s complaint, which asserts retaliation in violation of Conn. Gen. Stat. § 31-290a. That provision prohibits employers from discharging or otherwise discriminating against an employee because that employee has filed a claim for benefits with the Connecticut Workers’ Compensation Commission (the “Commission”), and allows any employee “who is so discharged or discriminated against . . . either” to bring a civil action or to file a complaint with the Commission. The Dispensary asserts that this Court lacks jurisdiction to address Oni-Orisan’s retaliation claim under Section 31-290a because Oni-Orisan initially presented the same claim to the Commission. Because I agree that Oni-Orisan’s initial election to pursue her retaliation claim at the Commission ousts this Court of jurisdiction under Section 31-290a, I GRANT the Dispensary’s motion to dismiss.
Oni-Orisan’s complaint alleges the following facts. Oni-Orisan is an African American woman who was an employee of the Dispensary. (Compl. ¶ 2.) In 2008, Oni-Orisan began working for the Dispensary as a “Counselor II.” (Id. at ¶ 6.) In that position, Oni-Orisan was responsible for “counseling adults using cognitive behavior therapy and other therapeutic methods regarding substance abuse and co-occurring disorders.” (Id. at ¶ 9.) Clinic Supervisor Jimmy Moutinho supervised Oni-Orisan and eight other Dispensary employees. (Id. at ¶¶ 6-7.)
On June 26, 2011, Oni-Orisan fell while climbing stairs at work. (Id. at ¶ 10.) She fell back onto the stairs, hitting her head on the concrete wall and her shoulder on a railing. (Id.) Oni-Orisan informed Senior Counselor Alton Gray about the incident the same day. (Id. at ¶ 11.) After work, Oni-Orisan experienced headaches and pain in her neck and shoulder. (Id. at ¶ 12.) A doctor who examined Oni-Orisan on June 27, 2011, diagnosed Oni-Orisan with a concussion and sent her to the hospital, where she was further diagnosed with post-concussion syndrome. (Id. at ¶¶ 13-14.) She continues to experience light sensitivity, headaches, and neck and shoulder pain. (Id. at ¶ 14.)
Oni-Orisan filed a claim for benefits under the Connecticut Worker’s Compensation Act, under which she was temporarily designated as totally disabled. (Id. at ¶¶ 16-17.) On December 27, 2011, her physician permitted her to return to part-time work at the Dispensary. (Id. at ¶ 17.) During that time, unnamed representatives of the Dispensary contacted Oni-Orisan and threatened to terminate her unless she returned to work full-time. (Id. at ¶ 18.) She also received a letter on July 25, 2012, informing her that the Dispensary “cannot continue this arrangement indefinitely as it is impacting patient care and has placed additional significant burdens on your co-workers.” (Id.) Upon Oni-Orisan’s return to part-time work, Moutinho treated her “differently” than other non-disabled counselors by complaining that Oni-Orisan was not sufficiently responsive to her emails and by subjecting her to “hyper-scrutiny and unwarranted criticism” regarding client files and timeliness. (Id. at ¶ 19-21.) Moutinho did not discipline at least two non-disabled, non-African American employees for tardiness or filing late or falsified time sheets. (Id. at ¶ 21.)
During July and August 2013, Oni-Orisan took sick days from work because she was experiencing headaches as a result of her post-concussion syndrome. (Id. at ¶ 22.) After Oni-Orisan informed Moutinho that her treating neurologist was considering placing her back on medical leave, Moutinho began regularly reviewing her client files and requiring her to conduct “quality improvement chart audits.” (Id. at ¶ 25.) Mountinho did not engage in similar scrutiny of other employees, including two non-disabled, non-African American counselors who either failed to complete or lost client files. (Id. at ¶ 26.) On July 18, 2013, Moutinho warned Oni-Orisan about her “tardiness.” (Id. at ¶ 27.) On September 24, 2013, Moutinho recommended terminating Oni-Orisan on the basis that she had been tardy and had falsified her checklists. (Id. at ¶ 28.) The Dispensary terminated Oni-Orisan on September 30, 2013. (Id. at ¶ 29.)
B. Procedural History
The following procedural history is based on the exhibits the parties have submitted along with their memoranda. On October 15, 2013, Oni-Orisan’s attorney, Neil Johnson, wrote to Workers’ Compensation Commission Chairman John Mastropeitro and requested that a wrongful termination and discrimination matter be assigned to a Commissioner. (Def.’s Mtn. Ex. B.) On November 5, 2013, Chairman Mastropietro assigned the Section 31-290a claim to the Eighth District, a branch of the Commission, “for a hearing or other appropriate action.” (Def.’s Mtn. Ex. C.) Informal hearings addressing Oni-Orisan’s Section 31-290a claim were held on December 26, 2013, April 7 and 24, 2014, and June 23, 2014. (Def.’s Mtn. Exs. D-G.) At some point during this period, Attorney Jeremy Brown began representing Oni-Orisan before the Commission. After December 2014, however, the Commission stopped addressing the Section 31-290a claim in Oni-Orisan’s informal hearings. (See Pl.’s Opp. Exs. 3-5.)
Oni-Orisan filed suit against the Dispensary in this Court on March 24, 2015. On June 30, 2015, Attorney Brown sent a letter to the Commission informing it that he did not represent Oni-Orisan in her Section 31-290a claim, and requesting that the claim be withdrawn. (Pl.’s Opp. Ex. 2.) According to Attorney Brown, Oni-Orisan’s pending case before the Commission no longer includes any Section 31-290a claim. (Pl.’s Opp. Ex. 1 ¶ 12.) According to Attorney Alice Detora, who represents the Dispensary before the Commission, Oni-Orisan’s Section 31-290a claim is still pending before the Commission. (Def.’s Reply Ex. I ¶ 2.)
The complaint asserts three causes of action: (1) retaliation against Oni-Orisan for her filing of a worker’s compensation claim, in violation of Conn. Gen. Stat. § 31-290a; (2) disability discrimination under the Rehabilitation Act; and (3) race discrimination under the Civil Rights Act. The Dispensary moved to dismiss Count One, arguing that this Court lacks jurisdiction to hear that claim because Oni-Orisan previously asserted the same claim before the Commission. (ECF No. 15.) I find that Section 31-290a(b) requires Oni-Orisan to make a onetime election of remedies and that her ...