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Jansson v. Stamford Health, Inc.

United States District Court, D. Connecticut

April 5, 2017

SAMANTHA JANSSON, Plaintiff,
v.
STAMFORD HEALTH, INC. d/b/a STAMFORD HOSPITAL, STAMFORD HOSPITAL, STAMFORD ANESTHESIOLOGY SERVICES, P.C., VANTAGEPOINT LLC d/b/a VANTAGEPOINT HEALTHCARE ADVISORS, MICHAEL COADY, SHARON KIELY, SAL MANCINO and THERESA BOWLING, Defendants.

          RULING ON PLAINTIFF'S SECOND MOTION TO AMEND COMPLAINT [DOC. 59]

          CHARLES S. HAIGHT, JR. Senior United States District Judge

         I. INTRODUCTION

         Plaintiff 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.[1] 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).[2] 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 anesthesiologists.

         Furthermore, 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).

         As 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.

         A. Claims in Proposed Amended Complaint

         In her 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 of Connecticut.

         Plaintiff 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.

         Next, 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 § 46a-60.[3]

         Under 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 disabilities.

         In 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 (a)(1)-(2).

         Next, 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.

         Plaintiff 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.[4]

         In 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 (¶ 160).

         Plaintiff 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).

         In 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. (¶ 159).

         B. Pending Motion

         In 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 following:

"1. Clarify the extent and chronic nature of her medical conditions giving rise to her disability discrimination claims;
2. Clarify the speech and her motivation for speech giving rise to her claim under Section 31-51q of the Connecticut General Statu[t]es;
3. Clarify the role of Defendant VantagePoint LLC d/b/a VantagePoint Healthcare;
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.

         C. Procedural History

         Placing 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."[5] Id. Subsequently, Plaintiff filed her "Second Motion for Leave to Amend Complaint" [Doc. 59], which is the subject of this Ruling.

         As set 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 herein.

         II. DISCUSSION

         A. Rule 15(a)

         In general, a party may amend its pleading once as a matter of course within 21 days after serving it.[6] 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."[7] Plaintiff has not obtained the opposing parties' written consent to amend.[8] Therefore, she seeks the Court's leave.

         In 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).[9] 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." Id.

         The 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.").

         Applying 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 timely.

         Furthermore, 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.[10] 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.

         Moreover, 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 3.

         Unless 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 "futile." B.Potential 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.").

         In 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) (collecting cases).[11]

         A 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").

         In 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, the-defendant-unlawfully-harmed-me accusation." 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).

         With 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).

         C. Plaintiff's Claims

         In 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.

         1. Count One - Conn. Gen. Stat. § 31-51q

         a. Standard of Law

         Plaintiff's 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.

         To 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)).

         "A 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.

         Furthermore, 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)).

         With 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., at *31.

         b. Plaintiff's Claim

         In the 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).

         Although 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." Id.[12]

         It is 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).[13] 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.").

         In the 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 anesthesiologist.[14]

         The 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").

         Granted, 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 connection.").

         The 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.

         With 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).

         Thereafter, 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).

         Plaintiff's 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.

         Finally, 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 interference."

Matthews v. Dep't of Pub. Safety, No. HHDCV116019959S, 2013 WL 3306435, at *10 (Conn. Super. Ct. May 31, 2013) (lateral citation omitted).

         Moreover, 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 suffice.

         In sum, 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 ...


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