United States District Court, D. Connecticut
ORDER ON MOTION TO DISMISS
A. Bolden United States District Judge
Louis DiCesare, brings this action against Barbara J.
McKrell, Vincent A. Pacileo, and the Town of Stonington
(“Town”). ECF No. 18. His Amended Complaint
consists of twelve counts, alleging violations of different
Connecticut statutes, various violations of the United States
Constitution under 42 U.S.C. § 1983 (“Section
1983”), retaliation in violation of the Family Medical
Leave Act (“FMLA”), defamation, invasion of
privacy, intentional infliction of emotional distress,
negligent infliction of emotional distress, and
indemnification by the Town. Mr. DiCesare filed this action
in the Superior Court of Connecticut, and Defendants removed
it to this Court. ECF No. 2.
have filed a motion to dismiss the Amended Complaint in part,
for lack of subject matter jurisdiction under Fed.R.Civ.P.
12(b)(1) and failure to state a claim under Fed.R.Civ.P.
12(b)(6). ECF No. 23. Specifically, Defendants move to
dismiss Counts Six, Seven, Eight, Ten, and Eleven, arguing
that Mr. DeCesare failed to exhaust his administrative
remedies under the applicable collective bargaining
agreement, and Count Nine, which Defendants argue is based on
a Connecticut statute that does not create a private right of
action. Motion at 1, ECF No. 23.
following reasons, the Court GRANTS in part and DENIES in
part Defendants' motion to dismiss the Amended Complaint
in part. Count Nine is dismissed for failure to state a claim
because the Connecticut Freedom of Information Act does not
allow a private right of action. Counts Seven, Eight, Ten,
and Eleven of the Amended Complaint are dismissed for lack of
subject matter jurisdiction because Mr. DiCesare had not
exhausted the administrative remedies provided in the
CBA's grievance procedures. Count Six will proceed
because Mr. DiCesare need not exhaust the grievance
procedures before bringing his FMLA claim.
Court details only the facts that are relevant to the
Defendant's partial motion to dismiss below. Because
Defendants' motion to dismiss challenges whether the
Court has subject matter jurisdiction over certain of Mr.
DiCesare's claims, the Court also considers certain facts
that are contained in the exhibits attached to the motion to
dismiss and Mr. DiCesare's opposition. See Kamen v.
Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.
1986) (“However, when, as here, subject matter
jurisdiction is challenged under Rule 12(b)(1), evidentiary
matter may be presented by affidavit or otherwise.”).
DiCesare alleges that he was a Highway Supervisor for the
Town's Public Works Department from February 2009 until
his termination on April 30, 2015. Amend. Compl. ¶ 5,
ECF No. 18. On or around January 21, 2014, Mr. DiCesare was
allegedly also recognized as a bargaining member covered by
the Collective Bargaining Agreement (“CBA”)
between the Town and the Stonington Public Administrations
Association, Connecticut Independent Labor Union, Local #54
(“Union”). Id. ¶ 2. On or around
February 24, 2014, Ms. McKrell was appointed the Town's
Director of Public Works. Id. ¶ 13. Mr. Pacileo
was the Director of Administrative Services for the Town.
Id. ¶ 14. This case concerns Mr. DiCesare's
various allegations regarding Defendants' conduct during
the period from July 2014 through Mr. DiCesare's
termination on April 30, 2015, and some of Defendants'
conduct following the termination. Id. ¶¶
DiCesare alleges that, when he was first appointed Highway
Supervisor, it was a non-bargaining unit position and not
covered by the CBA. Amend. Compl. ¶ 17. On or around
July 23, 2014, the Union filed a petition with the State
Board of Labor Relations (“SBLR”) seeking to
expand its bargaining unit with the Town to include Mr.
DiCesare's Highway Supervisor position. Id.
¶ 28. Mr. DiCesare alleges that the Town opposed the
Union's petition, and that, since then, Ms. McKrell has
allegedly been “gunning for his job.”
Id. ¶ 20. He alleges that the Town, through Ms.
McKrell, began taking “retaliatory” action
against him, including by modifying, eliminating, or reducing
his duties; ignoring his requests to discuss performance
expectations and responsibilities; and falsely accusing him
of missing deadlines or failing to perform. Id.
¶ 21. On or around September 16, 2014, the SBLR
allegedly agreed that Mr. DiCesare's position belonged in
the Union and held an election on October 8, 2014, where the
position was voted into the unit. Id. ¶ 22. On
or around January 21, 2015, The SBLR allegedly issued a
Decision and Dismissal of Objections and Modification of
Unit, to formally modify the Union's bargaining unit to
include Mr. DiCesare's position. Id. ¶ 34.
The Town allegedly attempted to appeal this decision in a
civil court action, but the SBLR's decision became final
on or around March 27, 2015, and Mr. DiCesare's position
was allegedly deemed a bargaining unit position as of January
21, 2015. Id.
around October 9, 2014, the Town's First Selectman
allegedly “publicly berated” Mr. DiCesare on the
Town's public Facebook page, implying that Mr. DiCesare
was responsible for “substandard management” on
certain projects. Amend. Compl. ¶ 23. This allegedly
caused Mr. DiCesare “physical manifestations of
emotional distress” that required him to take medical
leave from approximately October 14, 2014 to October 24,
2014. Id. ¶ 24. Mr. DiCesare alleges that,
after he returned, Ms. McKrell continued to treat him in a
“hostile and retaliatory manner.” Id.
¶ 25. On or around October 30, 2014, Ms. McKrell
allegedly removed him from another project, and Mr. DiCesare
allegedly responded by email to complain that Ms. McKrell was
retaliating against him. Id. ¶¶ 27-28. On
or around November 4, 2014, Ms. McKrell allegedly issued Mr.
DiCesare with a written warning. Id. ¶ 28.
around January 7, 2015, Ms. McKrell allegedly issued Mr.
DiCesure a pre-disciplinary notice informing him that she
intended to impose a five day suspension for
“insubordination and insufficient planning.”
Amend. Compl. ¶ 30. On or around January 16, 2015, Mr.
DiCesare allegedly met with Ms. McKrell and the First
Selectman to discuss that proposed suspension. Id.
¶ 32. Mr. DiCesare alleges that the Town did not allow
him to bring his attorney to the meeting. Id. The
Town suspended Mr. DiCesare for five days, starting on or
around January 20, 2015. Id. ¶ 33.
DiCesare alleges that the “physical manifestations of
the hostility and stress” that he was subjected to
required him to take FMLA leave from January 21, 2015 through
March 23, 2015. Amend. Compl. ¶ 35. In anticipation of
Mr. DiCesare's return from FMLA leave, Ms. McKrell
allegedly issued a memorandum indicating that she was taking
away Mr. DiCesare's Town vehicle that he had been using
for six years; that she was moving his office; that he needed
to comply to a new hour-by-hour schedule for his workday; and
further reducing his authority. Id. ¶ 36.