United States District Court, D. Connecticut
RULING AND ORDER
R. Underhill United States District Judge.
present employment discrimination lawsuit, the defendants,
Bridgewater Associates, LP, Iain Paine, Ryan Oberoi, and
Jeffrey Welsh (collectively, “Bridgewater”),
and Abyss Group, Inc.,  have moved pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Raymond
Farzan's claims that he was discriminated against and
terminated on the basis of his age, race, and religion in
violation of Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act of 1967 (ADEA), and the
Connecticut Fair Employment Practices Act (CFEPA).
Bridgewater and Abyss contend that Farzan's Amended
Complaint fails to state claims upon which relief can be
granted and also must be dismissed for lack of subject matter
jurisdiction. For the reasons set forth below, I grant
Bridgewater's and Abyss's motions. Because I conclude
that further amendment of the complaint would be futile, I
deny leave to amend and dismiss Farzan's Amended
Complaint with prejudice.
Standard of Review
motion to dismiss for failure to state a claim is designed
“merely to assess the legal feasibility of a complaint,
not to assay the weight of evidence which might be offered in
support thereof.” Ryder Energy Distrib. Corp. v.
Merrill Lynch Commodities, 748 F.2d 774, 779 (2d Cir.
1984) (quoting Geisler v. Petrocelli, 616 F.2d 636,
639 (2d Cir. 1980)). When deciding a motion to dismiss, I
must accept the material facts alleged in the complaint as
true, draw all reasonable inferences in favor of the
plaintiffs, and decide whether it is plausible that
plaintiffs have a valid claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Twombly, “[f]actual allegations must be enough
to raise a right to relief above the speculative level,
” and assert a cause of action with enough heft to show
entitlement to relief and “enough facts to state a
claim to relief that is plausible on its face.” 550
U.S. at 555, 570; see also Iqbal, 556 U.S. at 679
(“While legal conclusions can provide the framework of
a complaint, they must be supported by factual
allegations.”). The plausibility standard set forth in
Twombly and Iqbal obligates the plaintiff
to “provide the grounds of his entitlement to
relief” through more than “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555
(quotation marks omitted). Plausibility at the pleading stage
is nonetheless distinct from probability, and “a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the claims] is improbable, and .
. . recovery is very remote and unlikely.” Id.
at 556 (quotation marks omitted).
a motion to dismiss under Rule 12(b)(1), the party who seeks
to invoke a court's jurisdiction bears the burden of
establishing that jurisdiction. Thompson v. Cnty. of
Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (citing
Warth v. Seldin, 422 U.S. 490, 518 (1975)). To
survive a motion to dismiss for lack of subject matter
jurisdiction, a plaintiff must allege facts demonstrating
that the plaintiff is a proper party to seek judicial
resolution of the dispute, and that the legal basis for the
dispute allows it to be adjudicated in federal district
Farzan (born Reza Farzan) is “a 66 year old Muslim
man . . . who was born in Iran.” Am. Compl., Doc. No.
39, at ¶ 1. He has worked as a “Business
Analyst” or “Project Manager” in the
information technology departments of financial services
companies. Id. at ¶ 2. Farzan has incorporated
“a one man organization, ” America's
Consulting Enterprise, through which he contracts out his
services to different financial services firms. See
March of 2014, Farzan was contacted by a recruiter from Abyss
Group about a job at Bridgewater Associates, a major hedge
fund. See Id. at ¶¶ 9, 15. Farzan
interviewed with managers at Bridgewater and was offered a
position, which he accepted. Id. at ¶¶ 17,
18. He then spoke with his recruiter at Abyss, who (according
to Farzan) told him “[he] would be working at
Bridgewater at least for 18 months” and “agreed
on an hourly rate increase schedule” that extended for
over one year. Id. at ¶ 21. On April 9, 2014,
Farzan signed a Professional Service Agreement with Abyss,
which stated that “Abyss or [Farzan] may terminate
th[e] Agreement at will at any time on [t]wo weeks prior
notice.” Ex. H to Am. Compl., Doc. No. 39, at 66, 68.
time at Bridgewater proved unhappy. He received what he felt
was unfair criticism from his supervisor Iain Paine, as well
as from two coworkers, Ryan Oberoi and Jeffrey Welsh. For
example, under Bridgewater's work culture of
“radical transparency, ” Farzan's supervisors
initiated a feedback session over email on May 21, 2014, in
which Paine expressed his “concern” that Farzan
“need[ed] to be net positive” and that he was
“being overly cautious and not pushing forward to
really drive out requirements and understand/get context of
what he [was] doing.” See Ex. S to Am. Compl.,
Doc. No. 39, at 106. Another Bridgewater employee, Ruairi
Powers, agreed that “Raymond seem[ed] to be very
reactive” and “d[id] not seem naturally curious
to understand the domain he [was] operating in.”
Id. at 105. The next day, Welsh added that he
“expect[ed] [Farzan] to be assertively driving (active
vs. passive)” and observed that Farzan “seemed
not to absorb things [they] discussed.” Id.
6, Oberoi replied to the previous email chain to add that he
“ha[d] not seen Raymond carry his weight, and be net
positive for the team.” Id. at 104. He wrote
that “[the] team [was] overall suffering because of the
lack of a [Business Analyst] who [was] at the bar and
carrying things forward, ” and that he was
“counting on Iain [Paine] to actively collect and
evaluate the feedback, provide transparency and take required
action.” Id. Farzan responded that
Oberoi's “statements [were] not based on
facts” and complained that most of the team members had
spent fewer than 30 minutes with Farzan since he began work
at Bridgewater. See id.
addition to the emails-which he characterizes as
“humiliating” and “publicly blam[ing],
” Am. Compl., Doc. No. 39, at ¶¶ 51 &
52-Farzan identifies in his Amended Complaint a number of
other negative experiences at Bridgewater. At one point,
Paine “offered [Farzan and two developers] alcohol
drinks and [Farzan] refused, but the developers
accepted.” Id. at ¶ 55. Farzan suspects
that Farzan “continu[ing] to work” while Paine
and the developers drank “[m]aybe [was] why [Paine]
thought [he] was not a good fit to his team.”
Id. Farzan also claims that Welsh “made fun of
[him] for his national origin, . . . called Iran that
‘f**king country' and . . . said ‘Iranians
are shitty people, '” id. at ¶ 60,
and that “[o]nce Oberoi told [him] in the lobby that
[he] was an old Muslim and . . . did not belong [at]
Bridgewater, ” id. at ¶ 67.
those encounters and the critical emails, Paine spoke with
Farzan on June 13, 2014, and informed him that his last day
would be June 27. Id. at ¶ 78. Farzan
“strongly disagreed with [Paine] and wanted to discuss
[his] work with him, [but] he refused to spend more time with
[Farzan] in that meeting.” Id. Farzan then
called his recruiter at Abyss, who “[t]o [his] surprise
. . . said Paine was happy with [him] at work.”
14, Paine circulated an email to Farzan's team informing
them that he “ha[d] asked Raymond to finish up open
requirement threads over the next 2 weeks, at which point he
w[ould] be ending his [Bridgewater] assignment.” Ex. Q
to Am. Compl., Doc. No. 39, at 100. He wrote that
Farzan's termination was “in part driven by the
current stage of the project, and in part due to feedback
from the team on Raymond[']s performance and ability to
both fit and be net positive to the team.” Id.
He added, “[a]ll th[at] being said, Raymond ha[d] been
able to get some of the important threads locked down and
ha[d] kept some of [their] machines running.”
Id. In the Amended Complaint, Farzan characterizes
the statements in Paine's email as “false
acquisitions [sic].” Am. Compl., Doc. No. 39, at ¶
16, “to resolve [his] conflicts with Bridgewater
internally to save [his] job, ” Farzan “emailed
Employee Relations.” Id. at ¶ 80. He
spoke with an attorney from Bridgewater two days later, and
again with the same attorney and Paine on June 26, but both
“meeting[s] [were] useless.” Id. at
¶¶ 80 & 81.
[the] early morning of [June 26, 2014], ” Farzan
“went to CHRO's office in Bridgeport . . . to file
a complaint of discrimination against Bridgewater and
Abyss.” Id. at ¶ 89. He was told by a
CHRO employee that “since [he] worked at
Bridgewater's location only [he] could file a complaint
against Bridgewater only, ” and so did not file a
complaint against Abyss. Id. Farzan states, however,
that he intended for his “complaint [to be] against
both employers: Bridgewater and Abyss.” See
Id. at ¶ 100.
CHRO investigated Farzan's administrative complaint, and
he “received a right to sue letter” on January
20, 2016. See Id. That letter noted that Farzan
“must bring an action in Superior Court within 90 days
of receipt of th[e] release” (i.e., April 19, 2016).
Ex. V to Am. Compl., Doc. No. 39, at 115. Farzan filed suit
against Bridgewater, Abyss, and Paine, Oberoi, and Welsh in
Connecticut Superior Court on April 18, 2016. Am. Compl.,
Doc. No. 39, at ¶ 100. Using a state marshal, Farzan
served the summons and complaint on Bridgewater on May 16,
and on Abyss on May 25. Ex. A to Bridgewater's Mot.
Dismiss Am. Compl., Doc. No. 40-2, at 2. Farzan served Oberoi
on May 23 through Bridgewater's general counsel.
See Yurko Decl., Doc. No. 40-3, at 2. Paine and
Welsh assert that they have not yet been served. See
Id. at 2.
15, 2016, the defendants removed Farzan's suit to this
court pursuant to 28 U.S.C. §§ 1441 & 1446.
Notice of Removal, Doc. No. 1. On July 15, the defendants
moved to dismiss Farzan's Complaint. Bridgewater's
Mot. Dismiss Compl., Doc. No. 21; Abyss's Mot. Dismiss
Compl., Doc. No. 23. Farzan responded by filing an opposition
with an Amended Complaint attached, which I treated as a
motion to amend. See Ex. 1 to Pl.'s Resp.
Defs.' Mots. Dismiss Compl., Doc. No. 36-1, at 9. The
defendants then renewed their motions to dismiss on October
6, Bridgewater's Mot. Dismiss Am. Compl., Doc. No. 40;
Abyss's Mot. Dismiss Am. Compl., Doc. No. 42, and Farzan
opposed on October 24, Pl.'s Resp. Defs.' Mots.
Dismiss Am. Compl., Doc. No. 52. I heard oral argument on
December 20, 2016. See Doc. No. 57.
the defendants largely join each other's motions to
dismiss, I will refer to all the defendants as
“Bridgewater” unless greater specificity is
required. First, I will address the motions to dismiss
Farzan's Amended Complaint. Second, because
“pro se complaints should not be dismissed . .
. ‘without granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a
valid claim might be stated, '” Azkour v.
Bowery Residents' Comm., 646 F. App'x 40, 40 (2d
Cir. 2016) (summary order) (quoting Shomo v. City of
New York, 579 F.3d 176, 183 (2d Cir. 2009)), I
consider whether I should permit Farzan to amend his
complaint in the hopes of stating a valid claim.
Farzan's Amended Complaint
Amended Complaint alleges 12 counts against Bridgewater and
Abyss. See Am. Compl., Doc. No. 39. I take up each
count in turn.
Count I: Breach of Contract
Count I of the Amended Complaint, Farzan claims that
Bridgewater and Abyss “committed and contracted to
employ [him] for at least 18 months or 78 weeks, ” but
breached that contract by “unlawfully terminat[ing]
[his] employment after 11 weeks.” Am. Compl., Doc. No.
39, at ¶ 108. Bridgewater responds that “Farzan
does not allege anywhere in the Amended Complaint that any
specific term of a contract was breached by any Defendant,
” and “plainly does not state a claim for breach
of contract.” Bridgewater's Mem. Supp. Mot. Dismiss
Am. Compl., Doc. No. 40-1, at 14.
Connecticut, “[t]he elements of a breach of contract
claim are [i] the formation of an agreement, [ii] performance
by one party, [iii] breach of the agreement by the other
party, and [iv] damages.” Meyers v. Livingston,
Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn.
282, 291 (2014). “[T]he plaintiff ha[s] the burden of
proving . . . that [the employer] had agreed, either by words
or action or conduct, to undertake [some] form of actual
contract commitment to him under which he could not be
terminated without just cause.” Torosyan v.
Boehringer lngelheim Pharms., 234 Conn. 1, 15 (1995).
“A contract implied in fact, like an express contract,
depends on actual agreement.” Burnham v. Karl &
Gelb, P.C., 50 Conn.App. 385, 388 (1998).
Amended Complaint does not “plausibl[y]” allege
the elements for breach of an employment contract. See
Iqbal, 556 U.S. at 678. Farzan's claim that an
agreement was formed primarily rests on the statement by an
Abyss recruiter that he “would be working at
Bridgewater at least for 18 months.” Am. Compl., Doc.
No. 39, at ¶ 21. That sort of vague assurance “is
insufficient to establish . . . a meeting of the minds”
and “actual agreement” as required by Connecticut
See Canty v. Rudy's Limousine, 2005 WL 2297410,
at *3 (D. Conn. Sept. 15, 2005) (Droney, J.) (quoting
Pecoraro v. New Haven Reg., 344 F.Supp.2d 840, 844
(D. Conn. 2004)). Farzan also points to his agreement with
the recruiter “on an hourly rate increase
schedule” that extended over more than one year,
see Am. Compl., Doc. No. 39, at ¶ 21, but a
promise that Farzan would be paid at a certain rate
if he were employed more than 12 months does not
constitute a promise that he would be employed for
more than 12 months.
Farzan's claim that Bridgewater and Abyss
“committed and contracted to employ [him] for at least
18 months or 78 weeks” is contradicted by his own
exhibits. See Am. Compl., Doc. No. 39, at ¶
108. Although “the court must generally accept as true
all of the factual assertions in the complaint, . . . there
is a narrow exception to this rule for factual assertions
that are contradicted by the complaint itself, [or] by
documents upon which the pleadings rely.” Perry v.
NYSARC, Inc., 424 F. App'x 23, 25 (2d Cir. 2011)
(summary order) (citing Hirsh v. Arthur Andersen &
Co., 72 F.3d 1085, 1095 (2d Cir. 1995)); see Rothman
v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (“For
purposes of a motion to dismiss, we have deemed a complaint
to include any written instrument attached to it as an
exhibit . . . .”). Here, the Professional Service
Agreement explicitly states that “Abyss or [Farzan] may
terminate this Agreement at will at any time on [t]wo weeks
prior notice.” Ex. H to Am. Compl., Doc. No. 39, at 66.
“[W]hen the exhibits contract the general and
conclusory allegations of the pleading, the exhibits
govern.” Griffin Indus v. Irvin, 496 F.3d
1189, 1206 (11th Cir. 2007). Hence, Farzan has not
“plausibl[y]” stated a cause of action for breach
of contract, and I therefore dismiss Count I of his Amended
Complaint under Rule 12(b)(6). See Iqbal, 556 U.S.
Counts II & III: Wrongful Termination and Breach of
the Implied Covenant of Good Faith and Fair Dealing
Counts II and III of the Amended Complaint, Farzan claims
that Bridgewater and Abyss “wrongfully and unlawfully
terminated [his] employment” and “violated [his]
rights to fully benefit from [his] employment contract”
by “not deal[ing] with [him] in honesty, fairly, and in
good faith.” Am. Compl., Doc. No. 39, at ¶¶
109, 110. Bridgewater rejoins that those counts “must
be dismissed because they are based on the same allegedly
discriminatory conduct as [Farzan's] statutory
discrimination claims.” Bridgewater's Mem. Supp.
Mot. Dismiss Am. Compl., Doc. No. 40-1, at 14.
state a claim for breach of the covenant of good faith and
fair dealing, a plaintiff . . . ‘must allege either
that an enforceable employment contract exists, or that the
employer's actions in discharging the employee violated a
recognized public policy.'” Canty, 2005 WL
2297410, at *4 (quoting Cowen v. Fed. Express Corp.,
25 F.Supp.2d 33, 37 (D. Conn. 1998)). As explained above,
Farzan has not plausibly alleged “that an enforceable
employment contract exists.” See Id. Thus, he
must rely on “[the] cause of action for discharged
at-will employees for breach of the implied covenant of good
faith and fair dealing, ” which may be brought
“only when the discharge is for a reason that violated
public policy.” See Paul v. Bank of Am., N.A.,
2011 WL 5570789, at *3 (D. Conn. Nov. 16, 2011).
common law cause of action for breach of the implied covenant
of good faith and fair dealing, however, may not be used
“where the employee has a statutory remedy to the
public policy violation.” Id. (citing
Aukstolis v. AHEPA 58/Nathan Hale Senior Ctr., 579
F.Supp.2d 314, 322 (D. Conn. 2008)). Here, the public policy
violations alleged by Farzan, generously construed, are that
he was subjected to unlawful race and age discrimination.
See Canty, 2005 WL 2297410, at *5. Those violations
may be redressed through actions under Title VII, the ADEA,
and CFEPA. Indeed, Farzan already has made claims for
violation of those statutes in his Amended Complaint. Because
Farzan has statutory remedies available to remedy those
public policy violations, he “may not bring . . .
additional common law claim[s] for breach of the implied
covenant of good faith and fair dealing” or for
wrongful termination. See Id. Therefore, I dismiss
Counts II and III of the Amended Complaint under Rule
Count IV: ...