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Petion v. 1 Burr Road Operating Company II, LLC

United States District Court, D. Connecticut

December 8, 2017

FRANTZ PETION, Plaintiff,
v.
1 BURR ROAD OPERATING COMPANY II, LLC AND SENIOR PHILANTHROPY OF WESTPORT, LLC, Defendants.

          RULING GRANTING SENIOR PHILANTHROPY'S MOTION TO DISMISS

          JANET BOND ARTERTON, U.S.D.J.

         Plaintiff 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).[1] 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.

         I. Background

         On 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.)

         On June 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 to id.)

         On 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.)

         On 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. (See id.)

         On 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.)

         BROC removed the Superior Court action to federal court on December 6, 2016.

         II. Discussion

         A. CFEPA Claims

         1. 12(b)(1) Standard

         "[A] 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 Cir. 2000).

         2. Plaintiff did not Exhaust ...


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