United States District Court, D. Connecticut
RULING GRANTING SENIOR PHILANTHROPY'S MOTION TO
BOND ARTERTON, U.S.D.J.
Frantz Petion alleges that Senior Philanthropy of Westport,
LLC ("Senior Philanthropy") failed to provide him
with a reasonable accommodation and subsequently terminated
his employment because of his medical disability or perceived
disability in violation of Section 46a-60(a)(1) of the
Connecticut General Statutes (Count Four), and retaliated
against him in violation of both Conn. Gen. Stat. §
31-290a (Count Five) and Conn. Gen. Stat. §
46(a)-60(a)(4) (Count Six). Defendant Senior Philanthropy now
moves [Doc. # 35] to dismiss these claims pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the
reasons that follow, Defendant's Motion is granted.
March 17, 2015, Plaintiff filed a complaint with the
Connecticut Commission on Human Rights and Opportunities
("CHRO"), naming "Westport Health Care
Center" as the respondent, alleging discrimination on
the basis of Plaintiffs disability and retaliation against
Plaintiff for having opposed its discriminatory practices.
(See Ex. A to Def.'s Mot. to Dismiss.)
Specifically, he alleged that Westport Health Care Center
violated the Americans with Disabilities Act, 42 U.S.C.
§ 12101 etseq. and the CFEPA, General Statutes
§§ 46a-60(a)(1) and 46a-60(a)(4) as enforced
through § 46a-58(a). (Id.)
25, 2015, Plaintiff filed his first amended CHRO complaint,
naming "Traditions Senior Management aka Westport Health
Care" as the respondent, reasserting the allegations
from his March 17, 2015 CHRO complaint. (See Ex. B
August 12, 2016 Plaintiff filed a second amended CHRO
complaint, this time naming "Traditions Senior
Management" as the respondent in the case caption, but
also naming "Senior Philanthropy of Westport, LLC"
as a "new respondent/party" in the text of the
pleading. (See Ex. F to Def.'s Mot. to Dismiss.)
This complaint alleged that "Senior Philanthropy of
Westport, LLC and Traditions Senior Management aided and
abetted each other in discriminating against" Plaintiff.
(Id. ¶ 3.)
August 22, 2016, the CHRO issued a release of jurisdiction
authorizing Plaintiff to commence a civil action against
"Westport Healthcare Center" in the Superior Court.
(See Ex. A to Am. Compl. [Doc. # 34].) Thereafter,
Plaintiff initiated this action against both BROC and Senior
Philanthropy in Connecticut Superior Court by way of writ,
summons, and a complaint, dated November 4, 2016.
(See Ex. A to Def.'s Notice of Removal [Doc. #
1].) Plaintiff attached the CHRO release of jurisdiction for
claims against Westport Healthcare Center ("First
Release of Jurisdiction") to his civil complaint.
November 28, 2016, the CHRO issued a second release of
jurisdiction, authorizing Plaintiff to sue "Traditions
Senior Management a/k/a Westport Healthcare Center"
("Second Release of Jurisdiction"). (Ex. G to
Def.'s Mot. to Dismiss.) Also on that day, the CHRO
issued a third release of jurisdiction, which it styled as a
"corrected release, " authorizing Plaintiff to sue
"Traditions Senior Management And Senior Philanthropy of
Westport, LLC" ("Third Release of
Jurisdiction"). (See Ex. H to id.)
removed the Superior Court action to federal court on
December 6, 2016.
claim is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it." Morrison v. Nat7 Australia Bank
Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Arar
v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008)).
"When considering a motion to dismiss pursuant to Rule
12(b)(1), the court must take all facts alleged in the
complaint as true and draw all reasonable inferences in favor
of plaintiff." Sweet v. Sheahan, 235 F.3d 80,
83 (2d Cir. 2000). In response to a motion to dismiss
pursuant to Rule 12(b)(1), "[a] plaintiff asserting
subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists."
Makarova v. United States, 201 F.3d 110, 113 (2d
Plaintiff did not Exhaust ...