United States District Court, D. Connecticut
RULING RE: MOTION TO DISMISS (DOC. NO. 49)
C. Hall, United States District Judge.
Lois Craig (“Craig”) brings this action against
the Connecticut Department of Mental Health and Addiction
Services (“DMHAS”) and Celeste Cremin-Endes,
Rachel Manemeit, Melody Davis, Abby Cramer, Tommy Wilson,
Debby Baker, and Stephanie Leonard Harris in their individual
and official capacities on the basis of claims arising out of
Craig's employment relationship with DMHAS. Second
Amended Complaint (“2nd Am. Compl.”) (Doc. No.
45). In her five-count Second Amended Complaint, Craig
alleges violations of her rights under sections 1981 and 1983
of title 42 of the United States Code (Count One); negligent
infliction of emotional distress (“NIED”) (Count
Two) and defamation (Count Three) under state common law;
violations of the Americans with Disabilities Act
(“ADA”) (Count Four); and violations of her
rights under sections 1985 and 1986 of title 42 of the United
States Code (Count Five). Id.
defendants bring this Motion to Dismiss (Doc. No. 49) under
Federal Rules of Procedure 12(b)(1), 12(b)(2), 12(b)(5), and
12(b)(6), asserting that the Second Amended Complaint should
be dismissed in its entirety. For the reasons that follow,
defendants' Motion to Dismiss is granted.
is an African-American female who has been employed by DMHAS
as a Mental Health Assistant II for over sixteen years. 2nd
Am. Compl. at ¶ 3. As a union delegate, Craig frequently
represents her coworkers and herself in disputes between the
union and management. Id. at ¶ 5.
October 2012, Craig received a five-day suspension on the
grounds that she failed to supervise a client and then
falsified documents about her client's whereabouts.
Id. at ¶ 9, Ex. 2. Craig filed a complaint of
discrimination with the State of Connecticut Commission on
Human Rights and Opportunities (“CHRO”) in
November 2012. Id. The notice of Craig's
five-day suspension should have been removed from her file
after eighteen months, but remains there as of October 2016.
Id. at ¶ 10. Defendants have used the notice of
the five-day suspension as a pretext to place Craig on
multiple 90-day Performance Improvement Plans
(“PIP”), which limit her promotional
opportunities and expose her to termination. Id. at
September 24, 2015, a DMHAS Safety Officer sent an
office-wide email informing DMHAS employees that several
staff members had the air released from their cars' tires
in a DMHAS parking lot. Id. at ¶ 13, Ex. 4. The
email stated that an investigation was ongoing and did not
name any suspects. Id. Subsequently, several of the
defendants questioned Craig about the incident and gave her a
brochure titled, “Violence in the Workplace.”
Craig was the only employee questioned and counseled on
workplace violence at the meeting. Id. at ¶
unspecified time, defendant Debby Baker referred to Craig as
“an angry Black Woman [sic], who often wore dread locks
styled hair.” Id. at ¶¶ 16, 112.
Baker also described Craig as “cocky, lacking respect,
intimidating, exhibiting poor communication skills, being
illogical, and rude”; said that Craig's hair style
“harbored head lice”; and stated that Craig
“was too cocky and needed to be cut down to
size.” Id. at ¶¶ 17-18, 113-14. In
addition, in Craig's performance evaluations, defendants
wrote that Craig was “working too slowly on the
job.” Id. at ¶¶ 22, 27, 118. DMHAS
never disciplined any of the individual defendants for making
derogatory remarks towards Craig. Id. at
¶¶ 17, 113.
defendants' conduct described above, Craig developed
serious mental and emotional conditions, including anxiety,
depression, post-traumatic stress disorder, high blood
pressure, and insomnia. Id. at ¶ 23. Craig was
granted a leave of absence under the Federal Family and
Medical Leave Act (“FMLA”) in January 2016.
Id. at Ex. 9. Craig later applied for an
accommodation for her mental health conditions, which she
supported with documentation of her diagnosis of a nervous
breakdown in 2016. Id. at ¶¶ 24, 29. In
her accommodation request, Craig asked to be moved from the
second shift to the third shift. Id. at Ex. 9. On
November 18, 2016, the ADA Review Committee denied her
request. Id. Craig states that the defendants
determined that Craig's mental and emotional
“conditions were not serious enough, and that she
needed to develop a more concrete [version] of a nervous
breakdown in order to qualify for an accommodation under the
ADA.” Id. at ¶ 30.
2016, Craig attempted to a file a grievance about receiving
discipline without cause. Id. at ¶¶ 38-39.
The defendants told Craig that “only managers could
file complaints.” Id.
resolving a motion to dismiss under Rule 12(b)(1), the
district court must take all uncontroverted facts in the
complaint . . . as true, and draw all reasonable inferences
in favor of the party asserting jurisdiction.”
Tandon v. Captain's Cove Marina of Bridgeport,
Inc., 752 F.3d 239, 243 (2d Cir. 2014). Where
jurisdictional facts are in dispute, the court has the power
to decide issues of fact by reference to evidence outside the
pleadings, such as affidavits. Id. The burden is on
the plaintiffs to establish jurisdiction. Renne v.
Geary, 501 U.S. 312, 316 (1991); see also
Tandon, 752 F.3d at 243.
motion to dismiss pursuant to Rule 12(b)(1) is “the
proper procedural route” to bring a challenge to a
plaintiff's Article III standing to adjudicate a claim.
Alliance for Environmental Renewal, Inc. v. Pyramid
Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006).
motion to dismiss pursuant to Rule 12(b)(2) for lack of
personal jurisdiction, the plaintiff bears the burden of
demonstrating that the court may properly exercise
jurisdiction over the defendants. See Dorchester Fin.
Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84-85 (2d
Cir. 2013). “In order to survive a motion to dismiss
for lack of personal jurisdiction, a plaintiff must make a
prima facie showing that jurisdiction exists.”
Eades v. Kennedy, PC Law Offices, 799 F.3d 161,
167-68 (2d Cir. 2015) (internal quotation marks omitted).
“A plaintiff can make this showing through his own
affidavits and supporting materials, containing an averment
of facts that, if credited, would suffice to establish
jurisdiction over the defendant.” Whitaker v.
American Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.
2008) (citations, internal quotation marks, brackets, and
ellipsis omitted). The court “construe[s] the pleadings
and affidavits in the light most favorable to the plaintiffs,
resolving all doubts in their favor.”
Dorchester, 722 F.3d at 85.
plaintiff fails to effect proper service upon a defendant and
the defendant does not waive service of process pursuant to
Rule 4(d), the plaintiff's action may be subject to
dismissal pursuant to Rule 12(b)(5). “On a Rule
12(b)(5) motion to dismiss, the plaintiff bears the burden of
establishing that service was sufficient.” Khan v.
Khan, 360 F. App'x 202, 203 (2d Cir. 2010).
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must determine whether a plaintiff has stated a legally
cognizable claim by making allegations that, if true, would
show that the plaintiff is entitled to relief. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)
(interpreting Rule 12(b)(6), in accordance with Rule 8(a)(2),
to require allegations with “enough heft to
‘sho[w] that the pleader is entitled to relief”
(alteration in original)). The court takes all factual
allegations in the complaint as true and draws all reasonable
inferences in the plaintiff's favor. Crawford v.
Cuomo, 796 F.3d 252, 256 (2d Cir. 2015). However, the
principle that a court must accept a complaint's
allegations as true is inapplicable to “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
survive a motion pursuant to Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). “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. The plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556).
Service of Process for the Individual Defendants in their
Federal Rule of Civil Procedure 4, a plaintiff may serve
process upon a government agency by “delivering a copy
of the summons and of the complaint to its chief executive
officer” or “serving a copy of each in the manner
prescribed by that state's law for serving a summons or
like process on such a defendant.” Taylor v.
Norwalk Cmty. Coll., No. 3:13-cv-1889 (CSH), 2015 WL
5684033, at *5 (D. Conn. Sept. 28, 2015) (quoting
Section 52-64 of the Connecticut General Statutes:
Service of civil process in any civil action . . . against
any officer, servant, agent or employee of the state . . .
may be made by a proper officer (1) leaving a true and
attested copy of the process, including the declaration or
complaint, with the Attorney General at the office of the
Attorney General in Hartford, or (2) sending a true and
attested copy of the process, including the summons and
complaint, by certified mail, return receipt requested, to
the Attorney General at the office of the Attorney General in
argue that Craig never served the individual defendants in
their official capacities. See Defs.' Mem. in
Supp. of the Mot. to Dismiss (“Defs.' Mem.”)
(Doc. No. 49-1) at 9-13. Instead, DMHAS was the only
defendant served at the Attorney General's Office.
See id. at 11. Craig argues that all of the
individual defendants received copies of the summons and
complaint indicating that they were being sued in their
individual and official capacities. See Pl.'s
Opp'n to Defs.' Mot. to Dismiss (“Pl.'s
Opp'n”) (Doc. No. 57) at 12-15. Further, the
summons and ...