United States District Court, D. Connecticut
ORDER DENYING MOTION TO DISMISS
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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).
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.
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)).
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
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.
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.
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. 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