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DiCesare v. Town of Stonington

United States District Court, D. Connecticut

March 17, 2017

LOUIS DICESARE, II, Plaintiff,
v.
TOWN OF STONINGTON, BARBARA J. MCKRELL, and VINCENT A. PACILEO, III, in their individual and official capacities, Defendants.

          ORDER ON MOTION TO DISMISS

          Victor A. Bolden United States District Judge

         Plaintiff, 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.

         Defendants 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.

         For the 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.

         I. FACTUAL BACKGROUND

         The 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.”).

         A. Plaintiff's Allegations

         Mr. 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. ¶¶ 18-55.

         Mr. 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.

         On or 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.

         1. Suspension

         On or 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.

         Mr. 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.

         2. ...


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