United States District Court, D. Connecticut
RULING ON PLAINTIFF'S SECOND MOTION TO AMEND
COMPLAINT [DOC. 59]
CHARLES S. HAIGHT, JR. Senior United States District Judge
Samantha Jansson commenced this employment discrimination
action, alleging that she was wrongfully terminated by her
two former employers, Stamford Hospital (including Stamford
Health, Inc., doing business as Stamford Hospital) and
Stamford Anesthesiology Services P.C. ("SAS"). She
brings this action against these two employers, certain named
individual employees, and VantagePoint HealthCare, a
consulting firm which provided human resources and management
services to Stamford Hospital and SAS. Plaintiff alleges
that she was employed as an anesthesiologist by co-defendants
Stamford Hospital and SAS from approximately November 2007
until January 2015. Doc. 59-1, at 9 (¶ 18), at 37
(¶ 142), and at 39 (¶ 152). Plaintiff has been an
anesthesiologist for over 31 years and is "Board
Certified in Anesthesiology and Echocardiography."
Id., at 8 (¶ 13). During her employment with
Stamford Hospital and SAS, she occupied the position of
"Director of Cardiac Anesthesiology" at Stamford
Hospital. Id., at 9 (¶¶ 16-17). Plaintiff
alleges, inter alia, that she was terminated from
this position in retaliation for speech regarding safety
issues relating to the hospital's hiring of inexperienced
Plaintiff alleges discrimination by her employers due to her
physical disabilities. According to Plaintiff, she was
criticized in a disciplinary memorandum for elevating her
right foot on a stool while inducing patients with general
anesthesia; but such elevation was necessary due to her
severe mid-foot arthritis. Id., at 18-19
(¶¶ 57-58). In addition, she was allegedly accused
by the hospital of speaking louder than necessary in the
operation room. However, Plaintiff asserts that such loud
speech was the result of her partial hearing loss.
Id., at 19 (¶ 59). Lastly, Plaintiff was
criticized for not appropriately engaging with patients while
providing anesthesia. Id., at 18-19 (¶ 57).
Plaintiff, however, alleges that she had been instructed by
the hospital's Radiation Safety Director that her
radiation exposure levels on her monitoring badge had
increased to the point where she should wear a lead gown and
thyroid shield and either stand as far away as possible from
the point of radiation emission or sit behind the lead screen
in the lab procedure suite. Id., at 20 (¶ 60).
Plaintiff summarizes, "[a]s a result of raising safety
issues, an intense and committed campaign of retaliation
against Plaintiff followed involving all of the Defendants
that ultimately resulted in her termination."
Id., at 23 (¶ 73). Moreover, "Defendants
conspired with each other to effectuate Plaintiff's
termination, " "discriminated against Plaintiff due
to her disabilities, " and "retaliated against
Plaintiff due to raising concerns regarding her disabilities
and gender." Id.
Claims in Proposed Amended Complaint
proposed Amended Complaint, Plaintiff brings the following
causes of action. In Count One, Plaintiff alleges that
Stamford Hospital and SAS disciplined and discharged her for
speaking out regarding patients' safety, a matter of
public concern, in violation of Conn. Gen. Stat. §
31-51q. Specifically, these defendants allegedly violated her
right to exercise free expression, as guaranteed by Sections
3, 4 and 14 of Article First of the Constitution of the State
alleges in Count Two that Stamford Hospital and SAS
retaliated against her in violation of Title VII of the Civil
Rights Act of 1964. Specifically, she alleges that Stamford
Hospital engages in a pattern and practice of taking adverse
employment actions against female employees who make
complaints against Defendant Coady for his sexual harassment
of female employees. Furthermore, SAS allegedly participated
in retaliatory adverse employment actions against her. In
addition, Plaintiff alleges that her employment was
terminated by these employers in violation of Title VII.
in Counts Three and Four, respectively, Plaintiff alleges
that Stamford Hospital and SAS discriminated against her due
to her disabilities under the Americans with Disabilities Act
("ADA"), 42 U.S.C. §§ 12101, 12203(a),
and the Connecticut Fair Employment Practices Act
("CFEPA"), Conn. Gen. Stat §
Count Five, Plaintiff alleges that Stamford Hospital and SAS
retaliated against her in violation of the ADA by subjecting
her to discipline, and ultimately termination, in retaliation
for expressing opposition to discrimination based on her
Count Six, Plaintiff alleges retaliation under CFEPA by
Stamford Hospital and SAS for opposing discrimination based
on her disabilities and sex, Conn. Gen. Stat. § 46a-60
in Count Seven, Plaintiff alleges that Stamford Hospital
retaliated against her for exercising her right under the
Family and Medical Leave Act (" FMLA"), 29 U.S.C.
§ 2617, et seq., to take medical leave of one
day due to her daughter's medical condition.
brings Counts Eight through Twelve against five defendants
for "aiding and abetting" the discriminatory and
retaliatory conduct of Stamford Hospital and SAS (which was
allegedly based on Plaintiff's disabilities and sex in
violation of the CFEPA, Conn. Gen Stat. § 46a-60(a)(5)).
The defendants against whom these claims are brought include,
respectively: VantagePoint, Michael Coady, Sharon Kiely, Sal
Mancino, and Theresa Bowling. With respect to each
defendant's alleged violations of the CFEPA, Plaintiff
has filed a corresponding complaint with the Connecticut
Commission on Human Rights and Opportunities
("CHRO") on April 1, 2015, and received a release
of jurisdiction from CHRO.
Count Thirteen, Plaintiff alleges that "[t]he Stamford
Hospital Defendants and SAS aided, abetted, coerced,
compelled and incited the other's discriminatory and
retaliatory conduct based on Plaintiff['s] disabilities
and sex in violation of the CFEPA, " Conn. Gen. Stat.
§ 46a-60(a)(5). Doc. 59-1, at 47 (¶ 157). As to
this conduct, Plaintiff asserts that she filed a complaint
with the CHRO and EEOC on April 1, 2015, and received
releases of jurisdiction from the CHRO on January 4, 2016,
and from the EEOC on December 1, 2015. Id., at 48
next alleges in Count Fourteen that Stamford Hospital and SAS
"interfered with [her] relationship and opportunities
with the other in violation of Title VII, ADA and CFEPA due
to their discriminatory and retaliatory motives."
Id. (¶ 157). As in Count Thirteen, Plaintiff
asserts that she filed a complaint with the CHRO and EEOC on
April 1, 2015, and received releases of jurisdiction from the
CHRO on January 4, 2016, and from the EEOC on December 1,
2015. Id. (¶ 159).
Count Fifteen, Plaintiff alleges that Defendants Stamford
Hospital and SAS "discriminated against [her] due to her
sex in violation of CFEPA, Conn. Gen. Stat. Sec. 46a-60
et seq." Id. , at 49 (¶ 157).
Similarly, in Count Sixteen, Plaintiff asserts that
"Defendants Stamford Hospital and SAS discriminated
against Plaintiff due to her sex in violation of Title VII of
the Civil Rights Act of 1964, as Amended, 42 U.S.C. §
2000e[, ] et seq." Id., at (¶
157). As to these two counts for sex discrimination, state
and federal, Plaintiff alleges that she filed a complaint
with the CHRO and EEOC on April 1, 2015, and received
releases of jurisdiction from the CHRO on January 4, 2016,
and from the EEOC on December 1, 2015. Id. (¶
Plaintiff's pending second motion for leave to amend her
complaint [Doc. 59], she explains, in her own words, that
"[b]y way of this amendment, she seeks to do the
"1. Clarify the extent and chronic nature of her medical
conditions giving rise to her disability discrimination
2. Clarify the speech and her motivation for speech giving
rise to her claim under Section 31-51q of the Connecticut
3. Clarify the role of Defendant VantagePoint LLC d/b/a
4. Add an introductory paragraph and a paragraph regarding
the Court's jurisdiction, consistent with federal
pleading standard for complaints; and
5. Support the claim under Section 31-51q of the Connecticut
General Statutes that Plaintiff's speech did not
materially or substantial[ly] interfere with her bona fide
job performance or the working relationship."
Doc. 59, p. 1-2.
the pending motion in context, the Court notes that Plaintiff
filed her original complaint in state court (Judicial
District of Fairfield) on or about January 20, 2016.
Defendant Stamford Hospital then filed that complaint in this
court in conjunction with Defendants' "Petition of
Removal" on February 17, 2016. Doc. 1. Thereafter,
Defendants Coady, Kiely, Mancino, and Stamford Hospital filed
a "Motion to Dismiss" [Doc. 25] on April 8, 2016. A
few days later, Defendants Bowling and SAS filed a separate
"Motion to Dismiss" [Doc. 26]. While these two
motions were pending and unripe for decision, Plaintiff filed
an Opposition to the first motion to dismiss [Doc. 49]
contemporaneously with a first "Motion for Leave to
Amend Complaint" [Doc. 48]. After seeking and obtaining
extensions to respond to the second motion to dismiss [Doc.
26], Plaintiff moved to amend or correct her first motion to
amend in a pleading entitled, "Amendment to Motion for
Leave to Amend Complaint" [Doc. 54]. The Court granted
that motion, allowing Plaintiff to make
amendments/corrections to her first "Motion for Leave to
Amend Complaint" and directed Plaintiff to file her
second motion to amend in the form she proposed. Doc. 56. The
Court further explained that "if Plaintiff's amended
motion to amend is granted, there will be a new operative
complaint in this action" and the pending motions to
dismiss will no longer be directed to the proper
complaint." Doc. 57. Therefore, "[a]ll remaining
briefing deadlines for the pending Motions to Dismiss [Doc.
25 and 26] [were] . . . suspended until the Court [could]
rule[ ] on Plaintiff's second motion to amend the
complaint." Id. Subsequently, Plaintiff filed
her "Second Motion for Leave to Amend Complaint"
[Doc. 59], which is the subject of this Ruling.
forth supra, the Defendants have not objected to
this second motion to amend. However, to the extent that
their arguments in their motions to dismiss affect the
viability or futility of the claims included in the proposed
"Amended Complaint, " the Court considers them
general, a party may amend its pleading once as a matter of
course within 21 days after serving it. In the case at
bar, Plaintiff's motion to amend is her
"second" such motion and is thus governed by Rule
15(a)(2), Fed. R. Civ. P., which provides that "a party
may amend its pleading only with the opposing party's
written consent or the court's leave" and
"[t]he court should freely give leave when justice so
requires." Plaintiff has not obtained the opposing
parties' written consent to amend. Therefore, she
seeks the Court's leave.
Foman v. Davis, 371 U.S. 178, 182 (1962), the United
States Supreme Court articulated the relevant standard for a
court to determine whether to grant a party's request to
amend his or her pleading under Federal Civil Rule
15(a). In particular, the Foman court
stated: "In the absence of any apparent or declared
reason - such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of the amendment, etc. - the leave sought should, as
the rules require, be 'freely given.'" 371 U.S.
at 182. "Of course, the grant or denial of an
opportunity to amend is within the discretion of the District
Court, but outright refusal to grant the leave without any
justifying reason appearing for the denial is not an exercise
of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules."
Second Circuit consistently applies Foman in favor
of motions to amend. See, e.g., Knife Rights, Inc. v.
Vance, 802 F.3d 377, 389 (2d Cir. 2015) (Rule 15(a)(2)
"affords district courts considerable discretion to deny
amendment when there has been 'undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.'") (quoting
Foman, 371 U.S. at 182); Kroshnyi v. U.S. Pack
Courier Servs., Inc., 771 F.3d 93, 109 (2d Cir. 2014)
("The Federal Rules provide that courts 'should
freely give leave [to amend] when justice so
requires'" and "[i]n the absence of any
apparent or declared reason . . . such as undue delay, bad
faith or dilatory motive on the part of the movant . . . [or]
undue prejudice to the opposing party by virtue of allowance
of the amendment . . . the leave sought should, as the rules
require, be 'freely given.'") (quoting
Foman, 371 U.S. at 182); Grullon v. City of New
Haven, 720 F.3d 133, 139 (2d Cir. 2013) ("When a
party requests leave to amend his complaint, permission
generally should be freely granted.") (citing
Foman, 371 U.S. at 182); Milanese v. Rust-Oleum
Corp., 244 F.3d 104, 110 (2d Cir. 2001) ("Leave to
file an amended complaint 'shall be freely given when
justice so requires, ' Fed.R.Civ.P. 15(a), and should not
be denied unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.").
the Foman standard to Plaintiff's second motion
to amend, there is no evidence that the proposed amendments
are the product of any undue delay or bad faith. Plaintiff
filed her first request for leave to amend her complaint
[Doc. 48] within the time frame specified by the Court for
amendment of pleadings. See Scheduling Order (dated
4/26/2016) [Doc. 38]. Plaintiff thereafter, within two weeks
after her first motion to amend, sought leave to amend her
motion to amend her complaint to include additional
information to "support the claim under Section 31-51q
of the Connecticut General Statutes that Plaintiff's
speech did not materially or substantial[ly] interfere with
her bona fide job performance or the working
relationship." Doc. 54, at 1. The Court granted such
leave [Doc. 56]; and Plaintiff promptly filed her second
motion to amend [Doc. 59] (filed 7/22/2016). Under these
circumstances, the Court views the second motion to amend as
no facts indicate that Plaintiff has acted in "bad
faith" or sought to delay the proceedings. Rather, as
she states in her motion, Plaintiff seeks to supplement her
complaint by inserting additional facts. In her own
words, she seeks to "[c]larify the extent and chronic
nature of her medical conditions giving rise to her
disability discrimination claim, " "[c]larify the
speech and her motivation for speech giving rise to her claim
under Section 31-51q of the Connecticut General
Statu[t]es;" "[c]larify the role of Defendant
VantagePoint LLC d/b/a VantagePoint Healthcare;"
"[a]dd an introductory paragraph and a paragraph
regarding the Court's jurisdiction, consistent with
federal pleading standard for complaints;" and
"[s]upport the claim under Section 31-51q of the
Connecticut General Statutes that Plaintiff's speech did
not materially or substantial[ly] interfere with her bona
fide job performance or the working relationship." Doc.
59, at 1-2.
there has been neither "repeated failure [by Plaintiff]
to cure deficiencies by amendments previously allowed;"
nor is there "undue prejudice" to Defendants in
allowing Plaintiff to amend. Upon electronic notice of
Plaintiffs' proposed amendments and after weeks to
consider her motion, Defendants took no action to oppose the
amendments. Also, as Plaintiff has asserted, "Plaintiff
has not added any new claims" and "[t]he parties
are at the beginning states of discovery." Doc. 59-1, at
amendment would be "futile, " the leave sought
should be freely given. Plaintiff's addition of facts in
an attempt to clarify and enhance the factual allegations in
support of her claims is not, in and of itself, futile. If
anything, additional facts may strengthen, rather than
nullify, her claims before the Court. The Court will thus
examine each claim to determine whether its inclusion, as
drafted in the proposed amended complaint, would be
Futility With respect to futility,
"[w]here it appears that granting leave to amend is
unlikely to be productive, . . . it is not an abuse of
discretion to deny leave to amend." Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)
(citing Foman, 371 U.S. at 182). See also
Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.
1990) ("[W]here . . . there is no merit in the proposed
amendments, leave to amend should be denied.");
Albany Ins. Co. v. Esses, 831 F.2d 41, 45 (2d Cir.
1987) ("[T]he district court may deny leave to replead
if the proposed amendments would be futile.").
other words, although leave to amend must be freely given
under ordinary circumstances, denial is proper where the
proposed amendment would be "futile."
Foman, 371 U.S. at 182. An amendment is considered
"futile" if the amended pleading fails to state a
claim or would be subject to a successful motion to dismiss
on some other basis. See, e.g., Lucente v. Int'l Bus.
Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002)
("An amendment to a pleading is futile if the proposed
claim could not withstand a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6).") (citing Dougherty v. North
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d
Cir. 2002)); Donovan v. Am. Skandia Life Assur.
Corp., 217 F.R.D. 325, 325 (S.D.N.Y. 2003) ("Where
a proposed amended complaint cannot itself survive a motion
to dismiss, leave to amend would be futile and may clearly be
denied."), aff'd, 96 F.App'x 779 (2d
Cir. 2004); Bentley v. Greensky Trade Credit,
LLC, No. 3:14-CV-1157 (VAB), 2015 WL 9581730, at *2
(D.Conn. Dec. 30, 2015) ("[A] Court may deny leave to
amend if the proposed amendment would be futile because it
fails to state a claim that would survive a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6)."),
reconsideration denied sub nom., Bentley v. Tri
State of Branford, LLC, No. 3:14-CV-1157 (VAB), 2016 WL
2626805 (D. Conn. May 6, 2016). See also Faryniarz v.
Ramirez, 62 F.Supp.3d 240, 249 (D.Conn. Dec. 1, 2014)
proposed amendment would thus be futile, for example, if it
"destroyed the Court's subject matter jurisdiction,
failed to state a claim, or asserted claims which are
time-barred by the relevant statutes of limitation."
Faryniarz, 62 F.Supp.3d at 249-50 (citing Taurus
B, LLC v. Esserman, No. 3:14cv715 (CSH), 2014 WL
4494398, at *2 (D. Conn. Sept. 12, 2014)). See also
Wilson-Richardson v. Regional Transit Serv., Inc., 948
F.Supp.2d 300, 306 (W.D.N.Y. 2013) ('I conclude that no
amendment of the complaint would be sufficient to salvage
claims which are undisputedly unexhausted and untimely,
and/or over which the Court lacks jurisdiction").
addition, a claim is futile if it lacks the facts necessary
to "state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In deciding whether to dismiss for
failure to state a claim, a court must "take[ ] factual
allegations [in the complaint] to be true and draw[ ] all
reasonable inferences in the plaintiff's favor."
Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009)
(citation omitted). Although a complaint need not contain
"detailed factual allegations, " it must contain
"more than an unadorned,
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). Put simply, "[t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id.
(citing Twombly, 550 U.S. at 555). Rather, the
plaintiff's complaint must include "enough facts to
state a claim to relief that is plausible on its face."
Twombly, 550 U.S. at 570. "A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 663 (citing Twombly, 550 U.S. at 556).
"Determining whether a complaint states a plausible
claim is context-specific, requiring the reviewing court to
draw on its experience and common sense." Id.
at 663-64 (citing Twombly, 550 U.S. at 556).
respect to futility in particular, as the Second Circuit
summarized, "if the plaintiff has at least colorable
grounds for relief, " absent "undue delay or bad
faith or undue prejudice or unless [amendment] would unduly
prejudice the opposing party, " "justice does so
require" permission to amend. S.S. Silberblatt, Inc.
v. E. Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Co.,
608 F.2d 28, 42 (2d Cir. 1979) (citing Foman, 371
U.S. at 182).
assessing Plaintiff's claims for potential futility, the
Court examines whether each of her proposed claims states a
plausible claim for relief. Iqbal, 556 U.S. at 679.
"[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss." Id.
Count One - Conn. Gen. Stat. § 31-51q
Standard of Law
first count sets forth a claim pursuant to Conn. Gen. Stat.
§ 31-51q, alleging that her employers disciplined or
discharged her in violation of her first amendment right to
free speech. Under Connecticut law, an employer is liable to
an employee for compensatory and punitive damages, in
addition to attorney's fees and costs, if that employee
was disciplined or discharged "on account of the
exercise by such employee of rights guaranteed by the first
amendment to the United States Constitution or sections 3, 4,
or 14 of article first of the [Connecticut
Constitution]." Conn. Gen. Stat. § 31-51q.
state a plausible claim for violation of § 31-51q, a
plaintiff must allege "protected activity, adverse
action, a causal relationship between the activity and the
adverse action, and that the protected activity did not
interfere with the central purposes of the employment
relationship." McClain v. Pfizer, Inc., 692
F.Supp.2d 229, 241 (D. Conn. 2010) (quoting Winik-Nystrup
v. Manufacturers Life Ins. Co., 8 F.Supp.2d 157, 159
(D.Conn., 1998)). It thus follows that "[w]hen
establishing the prima facie elements of a § 31-51q
action, the plaintiff must prove three elements: "(1)
that he engaged in constitutionally protected speech, (2)
that his employer took an adverse action against him, and (3)
that there was a casual relationship between the protected
activity and the adverse action.'" Karagozian v.
Luxottica Retail N. Am., 147 F.Supp.3d 23, 35 (D. Conn.
2015) (citing, inter alia, Lowe v. AmeriGas,
Inc., 52 F.Supp.2d 349, 359 (D.Conn.1999) (citations
omitted), aff'd, 208 F.3d 203 (2d Cir.2000)).
Per the language of the statute, "[t]he plaintiff must
also show that (4) the exercise of his or her First Amendment
rights did 'not substantially or materially interfere
with [his or her] bona fide job performance or the working
relationship between the employee and the
employer.'" Id. (quoting Conn. Gen. Stat.
§ 31-51q). See also D'Angelo v. McGoldrick,
239 Conn. 356, 361 (1996)).
clear prerequisite to the application of § 31-51q . . .
is that the speech at issue must be constitutionally
protected . . ." Schumann v. Dianon Systems,
Inc., 304 Conn. 585, 600 (2012). To be protected under
the United States Constitution, speech must address a matter
of public concern, which occurs when it can "be fairly
considered as relating to any matter of political, social, or
other concern to the community . . . ." Connick v.
Myers, 461 U.S. 138, 146 (1983). Speech does not lose
its protection simply because it occurs in private
conversation (i.e., "is private rather than
public"), Givhan v. Western Line Consolidated School
District, 439 U.S. 410, 415-16 (1979), nor does it lose
such protection if it is mixed in nature ("not confined
entirely to matters of public concern"),
Connick, 461 U.S. 149-50.
the Connecticut Supreme Court has held that "Section 4
of article first of the Connecticut constitution . . .
provide[s] at least as much protection of speech as the
federal first amendment." Cubilla v. Town of
Montville, No. KNLCV116010874S, 2014 WL 1565899, at *4
(Conn. Super. Ct. Mar. 18, 2014) (citing State v.
Linares, 232 Conn. 345, 378-79 (1995)). As one
Connecticut court concluded:
[F]rom my review of the text and history of the Connecticut
Constitution and the case law . . . it is my opinion that the
free speech clauses of the Connecticut Constitution warrant
an independent analysis and may, in certain cases, provide
greater protection than that afforded under the first
amendment." [State v. Linares, 32 Conn.App.
656, 683 (1993).] Quoting this language, the Supreme Court
stated that "[t]his historical background indicates that
the framers of our constitution contemplated vibrant public
speech, and a minimum of governmental interference . .
Matthews v. Dep't of Pub. Safety, No.
HHDCV116019959S, 2013 WL 3306435, at *25 (Conn. Super. Ct.
May 31, 2013) (quoting State v. Linares, 232 Conn.
345, 386 (1995)).
respect to § 31-51q, the inquiry into whether the speech
was made "as an employee" or "as a
citizen" is "subordinate to the larger issues of
whether the speech addresses a matter of public concern and
whether the employer has a legitimate interest in restricting
the speech." Matthews, 2013 WL 3306435, at *31.
Under this approach, "a court will first determine
whether an employee's speech is on a matter of public
concern, then determine whether the interests of the employee
in making the speech outweigh the interests of the employer
in operating efficiently and effectively." Id.
In both inquiries, there is "an examination of the
speaker's role, and the relationship between the speech
and the speaker's employment duties." Id.,
case at bar, Plaintiff has alleged that Defendants Stamford
Hospital and SAS subjected her to "discipline and
discharge due to her speech regarding safety concerns."
Doc. 59-1, at 40 (¶ 157). She asserts that speech based
on a public concern regarding safety of patients constitutes
an exercise of free expression, " as guaranteed by
Sections 3, 4 and 14 of Article First of the Constitution of
the State of Connecticut." Id. (¶ 158).
She alleges that "Stamford Hospital and SAS by virtue of
their conduct violated Section 31-51q" and that
"[a]s a result of the Defendants' conduct, the
Plaintiff has and continues to suffer damages."
Id. (¶¶ 160-61).
Plaintiff has generally incorporated by reference paragraphs
1 through 156 of her proposed Amended Complaint into this
first Count, the language contained under the heading of
Count One itself is sufficient to point the Court toward
allegations to support the first element of her claim: the
speech to which Plaintiff refers concerned the "safety
of patients." Id. (¶ 157). In particular,
Plaintiff designates a prior section of her complaint as
"Plaintiff's Speech Regarding Safety Issues."
Id., at 11. In that section, she alleges that she
"expressed concerns [to Defendant Bowling] regarding
hiring [of] inexperienced cardiac anesthesiologists and the
potential for patient care to suffer in the absence of proper
procedures and time set aside for mentoring and
support." Id., at 11 (¶ 27). She alleges
that "at that time, Stamford Hospital cardiac program
had limited cases and was not set up to provide the support
necessary for the junior anesthesiologists."
Id. She thus expressed to Defendant Bowling that
there was a high "likelihood of an inexperienced
graduate failing or having complications . . . in a community
hospital environment" with "no in-house backup
during night and week-end call."
well established that "it is within the province of the
trial court to determine, as a matter of law, which topics
are considered to be of public concern." McClain v.
Pfizer, Inc., 692 F.Supp.2d 229, 242 (D. Conn. 2010)
(citing Daley v. Aetna Life and Cas. Co., 249 Conn.
766 (1999). In particular, "[w]hether or not
'an employee's speech addresses a matter of public
concern is a question of law for the court to decide, taking
into account the content, form, and context of a given
statement as revealed by the whole record.'"
Dillon v. Suffolk Cty. Dep't of Health Servs.,
917 F.Supp.2d 196, 205 (E.D.N.Y. 2013) (quoting Ruotolo
v. City of New York, 514 F.3d 184, 189 (2d Cir.2008)).
Moreover, the inquiry should be "a practical one"
that goes beyond mere "[f]ormal job descriptions."
Weintraub v. Bd. of Educ. of City Sch. Dist. of City of
N.Y., 593 F.3d 196, 202 (2d Cir. 2010) (citing
Garcetti v. Ceballos, 547 U.S. 410, 424-25 (2006));
see also Ross v. Breslin, 693 F.3d 300, 306 (2d Cir.
2012) ("The inquiry into whether a public employee is
speaking pursuant to her official duties is not susceptible
to a brightline rule. Courts must examine the nature of the
plaintiff's job responsibilities, the nature of the
speech, and the relationship between the two.").
case at bar, the danger to a patient created by the services
of an inexperienced anesthesiologist implicates safety. When
a patient undergoes surgery, his very life may be endangered,
perhaps even ended, by the services of an inexperienced
safety of hospital patients has been repeatedly recognized by
courts of this Circuit as a matter of public concern.
See, e.g., DiMarco v. Rome Hosp. & Murphy
Hosp., No. 88-CV-1258, 1991 WL 336000, at *8 (N.D.N.Y.
July 1, 1991) ("[C]omplaints about patient care and the
efficient operation of the Hospital would be a matter of
public concern such that they would be constitutionally
protected by the first amendment, " as opposed to simply
"caustic personal attacks on personnel that are
vindictive and personal.") (internal quotation marks
omitted); Spring v. Cty. of Monroe, N.Y., 59
F.Supp.3d 559, 563 (W.D.N.Y. 2014) ("[T]he treatment of
patients at a county hospital, particularly relating to
hospital officials' handling of a patient's behavior
that might affect the health and safety of other patients, is
a matter of public concern.")(collecting cases). Where
"the overall thrust of [a physican's] speech
relate[s] to matters of public concern, " reflecting
concern "for patients' well-being and for the
general workings of the Hospital" - rather than simply
complaints from "personal dissatisfaction, " that
speech relates to a matter of public concern.
DiMarco, 1991 WL 336000, at *8. See also
Dillon., 917 F.Supp.2d at 210 (finding matter of public
concern where physician's speech related to concerns
about "a systematic practice of inadequate treatment and
widespread usage of fictitious treatments and omissions in
the patients' charts").
Plaintiff's speech regarding inexperienced
anesthesiologists may also have related to Plaintiff's
employment as Director of Cardiac Anesthesiology. However,
that context does not nullify the fact that her speech
primarily related to safety. See Connick, 461 U.S.
149-50 (holding speech does not lose its constitutional
protection because it is "not confined entirely to
matters of public concern"); see also Dillon,
917 F.Supp.2d at 209 (Although "Plaintiff's speech
undeniably concerned the subject matter of her employment,
namely the treatment of patients at the JMU . . . the Supreme
Court has made clear that this alone is not dispositive. . .
. [E]ven in light of the broader perspective that the
Plaintiff's job duties included the general medical
treatment of inmates in the [hospital], the Court finds that
Dr. Dillon's speech was not made pursuant to those
duties" where the complaints dealt with "systemic
mistreatment and corruption" which affected patients
with whom she had "no personal or job
allegations in Plaintiff's complaint suggest that her
speech related to a broad safety problem of inexperienced
anesthesiologists' treatment of patients at Stamford
Hospital. The Court thus finds that, at the pleading stage,
Plaintiff has alleged the first element of a § 31-51q
claim: speech relating to a matter of public concern. Speech
regarding the use of inexperienced anesthesiologists in
surgery bears on a safety issue to the public. Such speech is
plausibly constitutionally protected by the First Amendment,
as well as by section 4 of the Connecticut Constitution.
respect to the second element of adverse employer action,
Plaintiff has alleged that Stamford Hospital and SAS took
adverse action against her in response to her speech, namely
by terminating her employment. Specifically, she alleges that
she was subjected to "discipline and discharge due to
her speed regarding safety concerns." Doc. 59-1, at 40
(¶ 157). In support of this element, Plaintiff has
alleged that her termination was preceded by months of
contentious conversations she had with Defendant Bowling
regarding recruitment of inexperienced anesthesiologists in
2012 and 2013. Id., at 11 (¶¶ 27-30). In
addition, on February 7, 2014, Plaintiff allegedly spoke with
Defendant Kiely, Chief Medical Officer for Stamford Hospital,
about this safety issue regarding inexperienced
anesthesiologists. Id., at 14 (¶ 34). After
being informed by Plaintiff that "junior candidates were
brought in without Plaintiff's knowledge or input[, ]
Defendant Kiely recommended a meeting with Defendants Bowling
and Coady and Bill Feng, the Cardiac Surgeon who [was] also
Coady's partner." Id. On or about February
28, 2014, that meeting occurred and Plaintiff allegedly
"expressed concerns again about the safety of patients
given that new [anesthesiology] graduates would not have the
necessary experience to function without proper support and
supervision, and . . . could not acquire nor maintain the
requisite skill sets in a low volume program . . . ."
Id., at 15 (¶ 36). Plaintiff says that her
"concerns regarding the safety and quality issues were
not favorably received." Id., (¶ 38).
on or about October 7, 2014, Plaintiff was terminated in a
meeting with Bowling, Kiely, and Sue Prior, a VantagePoint
consultant working for SAS. Plaintiff was advised that she
"did not have sufficient experience in obstetrical,
pediatric, and regional anesthesia anesthesiology in order to
continue her employment." Id., at 37 (¶
144). Nonetheless, the two new anesthesiologists who had been
hired by Stamford Hospital and SAS in 2014 "were
inexperienced in all areas." Id., at 38 (¶
149). One had allegedly "been out of training for two
years and the other had just completed residency."
Id. Also, Plaintiff's direct replacement, Dr.
Vlad Frenk, had allegedly been subjected to discipline for
professional misconduct by the medical misconduct boards in
New York, New Jersey, and Massachusetts. Id., at
28-29 (¶ 150).
termination, following a series of contentious discussions
with Bowling and Kiely regarding the hiring of inexperienced
anesthesiologists - and for the reported reason stated by
others of her own inexperience in various types of anesthesia
(after 31 years in anesthesiology) - is sufficient at the
pleading stage to constitute the second element of her §
31-51q claim, "adverse action" by her employer.
Bowling and Kiely were two of the three officials present at
the meeting when Plaintiff was terminated. Both held
positions of authority with their employers. Reading the
facts in the light most favorable to Plaintiff, she has
alleged sufficient facts to establish the third element of
her § 31-51q claim, termination in retaliation for her
comments about the hiring of inexperienced anesthesiologists.
as to the fourth element of her § 31-51q claim,
Plaintiff has alleged that her speech "did not
substantially or materially interfere with her bona fide job
performance or with her working relationship." Doc.
59-1, at 40 (¶ 157). Because such an assertion
necessarily alleges a negative (i.e., the lack of
existence of something), courts have held that it is the
defendant's burden to prove its inaccuracy. As one
Connecticut court explained,
"[I]f [plaintiff] were required to prove a lack of a
substantial and material interference, he would be forced to
prove a negative, which is a difficult if not impossible
task. See Arrowwood Indemnity Co. v. King, 304 Conn.
179, 203 (2012) ("the task of proving a negative is an
inherently difficult one . . ."). This would place the
court in the peculiar position of requiring the plaintiff to
plead either an extensive and exhaustive recitation of all
events that may have involved interference or a boilerplate
that would not give significant factual detail and would
likely involve a legal conclusion. In contrast, by placing
the burden on the defendant to plead a substantial and
material interference as a special defense, the defendant is
able to allege specific facts concerning any incidents of
disruption because, as the employer, it has a wider and
better knowledge of disruptive events. This creates a
situation well suited for an affirmative defense, and, in
light of the case law, interpretation of the statutory text
and confines of logic, it makes more sense that it is the
defendant's burden to prove a substantial and material
Matthews v. Dep't of Pub. Safety, No.
HHDCV116019959S, 2013 WL 3306435, at *10 (Conn. Super. Ct.
May 31, 2013) (lateral citation omitted).
when evaluating a claim for purposes of 12(b)(6) dismissal,
the court must view the facts in the light most favorable to
the plaintiff. In such circumstances, Plaintiff's
allegations regarding the fourth element of § 31-51q
in Plaintiff's Count One, she has alleged sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"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
(citing Twombly ...