United States District Court, D. Connecticut
MEMORANDUM OF DECISION
VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE
White sues his former employer, Smiths Medical ASD, Inc.
(“Smiths”), alleging that he was fired shortly
after requesting medical leave and that his employer fired
him to quash an inchoate claim for workers' compensation.
The issue is whether these allegations provide plausible
support to a minimal inference that Smiths was motivated by
White's claim for workers' compensation or by
White's exercise of other rights afforded to him by
Connecticut's Workers' Compensation Act
(“WCA”). They do not, even assuming that a claim
for preemptive or anticipatory retaliation is cognizable.
Smiths had no reason to anticipate a claim for workers'
compensation: White does not allege any facts suggesting that
he informed Smiths of a work-related injury, that Smiths
should have suspected a work-related injury, or that Smiths
knew that White intended to seek workers' compensation.
White does allege that his wife had previously sought
workers' compensation, but this allegation is irrelevant.
The complaint does not connect the cause of her injury or to
the cause of his injury. And, despite the pending motion to
dismiss, White has not sought leave to amend his complaint
for the purpose of asserting these essential facts.
complaint contains the following allegations. ECF No. 1-2.
White worked for Smiths, a multinational manufacturer of
medical devices, for thirty-eight years, from 1976 until
October 2014. Id. at ¶¶ 3, 7, 17. White
developed significant back pain beginning in July or August
2014, and a month or so later, in late September or early
October 2014, he sought medical treatment. Id. at
¶¶ 10-11. An orthopedic surgeon diagnosed him with
degenerative disc disease of his lumbar spine and recommended
surgery. Id. at ¶ 12. White scheduled surgery
for early November 2014 and emailed his supervisor, human
resources manager, and site coordinator to request a medical
leave of absence. Id. at ¶ 13-14. In late
October 2014, after no one responded to his email, White
called the human resources manager to request the phone
number for the company that administers medical leave.
Id. at ¶ 16. White was fired several days
later. Id. at ¶ 17.
asserts four claims for relief. Id. The only claim
now at issue is retaliation in violation of Connecticut
General Statutes § 31-290a-namely, Smiths fired White
because it “perceived that he was going to file a
workers' compensation claim.” Id. at
¶ 21. Buttressing this claim, White alleges that his
employer's belief was informed by the fact that his wife,
who also worked for Smiths and sustained a (presumably
work-related) neck injury, had sought workers'
compensation in 2012. Id. at ¶ 19. Her claim
for workers' compensation was costly; she did not work
for two years. Id. at ¶ 20.
moves to dismiss the retaliation claim for failure to state a
claim. ECF No. 16. Smiths argues that White fails to plead
two elements of a prima facie claim of retaliation:
he neither alleges the existence of a protected activity nor
that his employer knew that he engaged in that activity.
Id. White's opposition is less clear. ECF No.
17-1. He states that an employee need not engage in a
protected activity before receiving anti-retaliation
protections, but he leaves the Court with a handful of squibs
to identify his novel legal theory (preemptive or
anticipatory retaliation) and cobble together a standard for
evaluating it. Id. Smiths replies that the two cases
cited in support are easily distinguishable: in those cases,
there was a clear and unmistakable injury at work of which
the employer had notice. ECF No. 18.
reviewing a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted, a court “accept[s] all
factual allegations as true and draw[s] all reasonable
inferences in favor of the plaintiff.” Litwin v.
Blackstone Grp., L.P., 634 F.3d 706, 715 (2d Cir. 2011).
To survive a Rule 12(b)(6) motion, the complaint must plead
“enough facts 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 has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
district court follows a “two-pronged approach”
to evaluate the sufficiency of the complaint. Hayden v.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010). A district
court begins “‘by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth.'” Id. (quoting
Iqbal, 556 U.S. at 679). “At the second step,
a court should determine whether the ‘well-pleaded
factual allegations, ' assumed to be true,
‘plausibly give rise to an entitlement to
relief.'” Id. (quoting Iqbal, 556
U.S. at 679). “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.”
Iqbal, 556 U.S. at 678 (internal quotations
General Statutes § 31-290a prohibits an employer from
discharging, causing to be discharged, or discriminating
against any employee “because the employee has filed a
claim for workers' compensation benefits or otherwise
exercised the rights afforded to him pursuant to the
provision of this chapter.” Borrowing the familiar
burden-shifting standard articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Connecticut
Supreme Court has held that a prima facie claim of
retaliation requires proof of the following four elements:
(1) the employee engaged in a protected activity; (2) the
employer was aware of this activity; (3) the employer
subjected the employee to an adverse action; and (4) a causal
connection between the protected activity and the adverse
action. Mele v. City of Hartford, 270 Conn. 751, 776
(2004). A plaintiff need not plead a prima facie
case of retaliation, but he must allege facts providing
“plausible support to a minimal inference of
[retaliatory] motivation.” Cf. Littlejohn v. City
of New York, 795 F.3d 297, 311 (2d Cir. 2015)
(addressing 12(b)(6) standard in the context of
discrimination claims under Title VII).
arguments for and against dismissal turn on the following two
questions: (1) whether an employee is protected from
retaliation motivated by the possibility of a future
workers' compensation claim; and if so, (2) whether White
has alleged facts providing “plausible support to a
minimal inference” that Smiths had such a motivation.
The Court has not found any Connecticut cases explicitly
discussing “preemptive” or
“anticipatory” retaliation, although various
appellate and district courts have found such claims
actionable under federal and state law. See,
e.g., Sauers v. Salt Lake Cty., 1 F.3d
1122, 1128 (10th Cir. 1993) (“Action taken against an
individual in anticipation of that person engaging in
protected opposition to discrimination is no less retaliatory
than action taken after the fact; consequently, we hold that
this form of preemptive retaliation falls within the scope of
42 U.S.C. § 2000e-3(a).”); but see Torsky v.
Avon Products, Inc., 707 F.Supp. 942, 946 (W.D. Mich.
1988) (dismissing state retaliatory discharge claim arising
out of the anticipated filing of a worker's compensation
claim). And two cases cited by White suggest that a claim for
preemptive or anticipatory discharge is cognizable under
Connecticut law. See Huertas v. Rexel, C.L.S., 2011
WL 725005, at *2 (Conn. Super. Ct. Jan. 26, 2011) (holding
that notice of intention to file workers' compensation
claim sufficient); Lombardi v. Tilcon Connecticut,
Inc., 2007 WL 3042212, at *5 (Conn. Super. Ct. Oct. 3,
2007) (holding that notice of work-related injury followed by
medical leave sufficient). And the Lombardi court
offers a convincing rationale for doing so: “[t]o hold
otherwise would disadvantage claimants who are discriminated
against before they have perfected their claims under the Act
and are merely in the process of exercising their
rights.” 2007 WL 3042212, at *5 (internal quotation
marks and alterations omitted).
Court will leave the issue for another day. Evening assuming
that claims for preemptive or anticipatory retaliation are
cognizable, White fails to state such a claim because he does
not allege facts providing “plausible support to a
minimal inference” that Smiths anticipated a claim for
workers' compensation. Cf. Rope v. Auto-Chlor Sys. of
Wash., Inc., 220 Cal.App.4th 635, 649 (2013),
overturned due to legislative action (dismissing
claim for anticipatory retaliation, in part, because
“[plaintiff] has not alleged nor professed that he can
allege that [his employer] suspected he would file a
governmental complaint”). White does not identify a
work-related injury, fails to allege that he informed Smiths
of a work-related injury, provides no facts suggesting that
Smiths would have reason to know about a work-related injury,
and does not allege that he informed Smiths that he intended
to file a claim for workers' compensation. Moreover,
unlike most work-related injuries, his condition is
degenerative and lacks a traumatic origin. He alleges only
that he informed Smiths of a degenerative medical condition,
of his need for surgery, and his request for medical leave.
These allegations alone are insufficient.
allegation that his wife sustained a work-related injury has
no bearing on whether Smiths suspected a work-related injury.
White and his wife sustained different injuries, at different
times, and there are no facts suggesting that their
conditions of employment in this multinational company were
so similar that those conditions would reasonably cause both
injuries. Without alleging any facts connecting the cause of
his medical condition to his employment, the Court fails to
understand how an employer would anticipate a claim for
workers' compensation. If Smiths had no basis for
believing that Smiths was entitled to WCA protections, its
decision to fire White cannot be related to a possible claim
for workers' compensation or any other WCA protection.
absence of factual allegations on this issue distinguishes
this case from Lombardi and Huertas, the
only cases that White cites in support. In Lombardi,
the plaintiff alleged “[i]mmediate notice of a clear
and unmistakable injury at work, immediately followed by an
extended absence for medical treatment for that
injury.” 2007 WL 3042212, at *4. In Huertas,
the plaintiff alleged that he “received a workplace
injury, he told the employer of such injury, and informed the
employer of his intention to seek medical attention and his
intention to file a workers' compensation claim.”