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Perrin v. Connecticut Department of Correction

United States District Court, D. Connecticut

November 7, 2016

JEREMY PERRIN, Plaintiff,
v.
CONNECTICUT DEPARTMENT OF CORRECTION, Defendant.

          ORDER DENYING MOTION TO DISMISS

          JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE

         This case involves a plaintiffs claim that his employer unlawfully retaliated against him after he complained about sexual harassment. Defendant has moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint on the ground that plaintiff has not alleged facts to show an adverse action that was the result of plaintiff s harassment complaint. I will deny the motion to dismiss on the ground that plaintiff has alleged sufficient facts to establish plausible grounds for relief.

         Background

         Plaintiff Jeremy Perrin is an employee of defendant Connecticut Department of Correction. Plaintiff has filed a complaint under Title VII of the Civil Rights Act of 1964 alleging that he was subject to unlawful retaliation on the ground of his complaint about sexual harassment in the workplace. According to plaintiff, he filed a formal workplace complaint with defendant's Affirmative Action Office on April 24, 2013, alleging that he was subject to sexual harassment and a hostile work environment because of sexualized comments by a co-worker. On June 5, 2013, the Affirmative Action Office ruled that plaintiffs allegations were unsubstantiated.

         Several weeks later, plaintiff went out on disability leave in July 2013 because of a work-related injury, and he did not return to work until January 2014. According to plaintiff, "[f]rom his first day back on the job, [he] experienced hostility from his supervisors, " and "[h]e was given directions on many occasions which the supervisors knew he was physically incapable of performing because of his prior work-related injuries and because of his pre-existing physical disability." Doc. #1 at 3.

         Plaintiff further alleges that on July 22, 2014, he was ordered to submit to a pre-disciplinary conference on the basis of a false accusation that he had made a copy of a confidential department document. The pre-disciplinary conference did not take place, because plaintiffs physician ordered him off duty again because of his work-related injury, and plaintiff has not been physically able since that time to return to work.

         Discussion

         The background principles governing a Rule 12(b)(6) motion to dismiss are well established. The Court must accept as true all factual matters alleged in a complaint, although a complaint may not survive unless its factual recitations state a claim to relief that is plausible on its face. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014) (same). Moreover, "'[although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action ... do not suffice'" to survive a motion to dismiss. Ibid, (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)). In short, my role in reviewing a motion to dismiss is to determine whether the complaint-apart from any of its conclusory allegations-sets forth sufficient facts to state a plausible claim for relief.

         Just what does it mean to state a "plausible" claim for relief? As the Supreme Court has explained, "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." Iqbal, 556 U.S. at 678. My task is not to evaluate whether plaintiffs allegations are credible or likely true, because "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." Ibid; see also Vega v. Hempstead Union Free Sch. Dist, 801 F.3d 72, 87 (2d Cir. 2015) (same).

         Title VII protects not only against an employer's outright discrimination against an employee on the basis of the employee's protected characteristics but also protects against an employer's retaliating against an employee for complaining about alleged discrimination. See 42 U.S.C. § 2000e-3(a). In order for a Title VII retaliation claim to survive a motion to dismiss, a plaintiff must allege facts to show that a defendant took an adverse action against plaintiff because of plaintiff s protected activity of opposing or complaining about discrimination. See Vega, 801F.3dat90.

         As for the "adverse action" requirement, this means "any action that 'could well dissuade a reasonable worker from making or supporting a charge of discrimination.'" Ibid, (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). As for the "because" requirement of a causal connection between plaintiffs protected activity and the adverse action, this means that "the plaintiff must plausibly allege that the retaliation was a 'but-for' cause of the employer's adverse action." Ibid, (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013)).

         Defendant contends that plaintiff has not plausibly alleged an adverse action. I do not agree. The complaint alleges that, immediately upon plaintiffs return to work, his supervisors ordered him on many occasions to engage in actions they knew that he could not physically do. See Doc. #1 at 3.[1] If done for reasons of a retaliatory motive, a supervisor's repeated instructions to an employee to do something that the employee cannot physically do without risk of injury is the type of action that would reasonably dissuade an employee from complaining about discrimination.

         Similarly, if it is true that plaintiffs supervisors decided for retaliatory reasons to initiate disciplinary proceedings against plaintiff on grounds they knew to be false, I cannot help but conclude that this tactic would likewise dissuade any reasonable employee from complaining about discrimination. Cumulatively, these actions-involving repeated demands on an employee to perform the physically impossible and initiation of a disciplinary action for a bogus claim of misconduct-well exceed the petty slights or minor annoyances that any employee should reasonably expect in a modern workplace. They are actionable adverse actions.

         Defendant further contends that plaintiff has failed to allege facts to show the requisite causal connection between a retaliatory motive and the alleged adverse actions. I do not agree. Plaintiff filed his complaint of sex discrimination in April 2013, then was out of work from July 2013 to January 2014, and he was then allegedly subject to hostility and retaliatory actions beginning immediately upon his return to work.[2] The Second Circuit has made clear that there is no "bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action, " and that a temporal gap of "five months might be enough to establish a prima facie case" for purposes of a plaintiffs initial pleading burden. See Abrams v. Department of Public Safety,764 F.3d 244, 254 (2d. Cir. 2014). Here, plaintiff could not feasibly have been subject at all to retaliatory adverse action for the several months that he was not even at work from July 2013 to January 2014. The fact that he was allegedly subject to adverse ...


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