United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTIONS TO DISMISS AND
PLAINTIFF'S MOTION TO AMEND
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
Marie Barone (“Plaintiff”) sued her employer, the
Judicial Branch for the State of Connecticut (“Judicial
Branch”) and two Judicial Branch employees who
supervised Ms. Barone, Gloria Albert and Linda Coon. Ms.
Barone alleges that Defendants discriminated against her in
violation of the American with Disabilities Act
(“ADA”), and the Rehabilitation Act (“Rehab
Act”), and violated her constitutional rights.
Currently pending before the Court are Defendants' two
motions to dismiss, ECF No. 16 and 25, and Plaintiff's
motion to amend the complaint, ECF Nos. 24.
reasons stated below, the motion to amend, ECF No. 24, is
GRANTED and the first motion to dismiss, ECF
No. 16, is DENIED as moot. Defendants'
second motion to dismiss, ECF No. 25, is
GRANTED in part and DENIED
FACTUAL AND PROCEDURAL BACKGROUND
Barone, a Connecticut resident, alleges that she worked for
Defendant Judicial Branch as a court monitor from April,
2000, until February 22, 2016. See Second Amend. Compl.
(“Am. Compl.”) ¶ 8, ECF No. 24-1. Defendants
Albert and Coon both served as Ms. Barone's supervisors
while she was employed by Judicial Branch. Id.
Barone alleges that, during the course of her employment, she
developed ulcerative colitis and was diagnosed with
“Attention-Deficit/Hyperactivity Disorder, ” a
learning disability. Id. ¶ 9. She claims that,
as a result of these conditions, Defendants perceived Ms.
Barone to be disabled, and she sought reasonable
accommodations beginning in 2013. Id. ¶¶
9-10. Defendant Albert denied Ms. Barone's request, and
Ms. Barone filed a complaint in May 2014 with the Connecticut
Commission on Human Rights and Opportunities (CHRO) and the
Equal Employment Opportunity Commission (EEOC), challenging
month after the filing of the CHRO complaint, Defendant Coon
became Ms. Barone's new supervisor. Id. ¶
11. Ms Barone alleges that Defendant Coon “harassed and
intimated [sic] the plaintiff to the point of exhaustion,
requiring the plaintiff to gout [sic] again on medical leave
in 2014.” Id. Ms. Barone alleges that when she
returned, she was again denied a request for an accommodation
of her disabilities. Id.
Barone alleges that Defendants Albert and Coon never believed
that she was disabled, but instead considered her to be a
“malingerer” and “developed animosity and
malice toward” her. Id. ¶ 13. She claims
that, as a result of this malice, they “engaged in an
intentional campaign to harass, intimidate and ultimately
discharge the plaintiff” from employment. Id.
Defendants Albert and Coon, Ms. Barone alleges, then
proceeded to discipline her for pretextual reasons, including
for “using foul language” and “stealing
time, ” even though she claims other employees who
behaved in similar ways faced no discipline. Id.
¶ 14. They also allegedly gave Ms. Barone negative
performance reviews beginning in 2014 and denied her a raise
in 2015. Id. ¶¶ 14-15.
January 25, 2016, Ms. Barone allegedly filed a second CHRO
complaint against the Judicial Branch, of which she claims
both Defendants Albert and Coon were aware. Id.
¶ 19. Less than one month later, Defendant Albert
notified Ms. Barone that her employment was terminated.
Id. ¶ 20.
Barone claims that, as a result of Defendants' actions,
she “lost her employment, together with the wages and
other tangible benefits of state service; she also suffered
emotional stress and fear about her future employment
prospects, together with the loss of those statutory and
constitutional rights herein described.” Id.
¶ 21. This lawsuit followed.
Barone filed the initial Complaint in this lawsuit on April
18, 2017. See Compl., ECF No. 1. Defendants moved to
dismiss the Complaint two months later. See Defs.
Mot. to Dismiss, ECF No. 16.
24, 2017, Ms. Barone moved for permission to file an Amended
Complaint. See Pl. Mot. to Amend, ECF No. 24. She
argued that “amendment will simplify the litigation and
narrow the litigation” in response to the
Defendants' first motion to dismiss. Id. at 1.
The Second Amendment Complaint, which Ms. Barone attached to
the motion, would address “most, if not all, of the
Defendants' claims . . . by specifying which claims
pertain to which Defendants.” Id. at 2.
Second Amended Complaint alleges violations of “Title
II” of the American with Disabilities Act
(“ADA”), 42 U.S.C. § 12131 et. seq.,
“Section 504” of the Rehabilitation Act, 29
U.S.C. § 794, and violations of 42 U.S.C. §§
1983 and 1988. The complaint appears to allege violations of
the ADA and Rehab Act against Judicial Branch. Additionally,
it alleges Defendants Coons and Albert violated the ADA and
Rehab Act, and are liable for violating Ms. Barone's
First and Fourteenth Amendment rights. The amended complaint
states that Defendants Albert and Coon are “sued in
[their] individual capacit[ies] only, ” Am. Compl.
¶¶ 5-6, and, for the purposes of the ADA claims and
the Rehabilitation Act claims Defendants are sued in their
official capacities. Id. ¶¶ 7-8.
now move to dismiss, in part, the Second Amended Complaint.
They state that they do not oppose the motion to amend the
complaint. See Def. Mot. to Dismiss Second Am.
Compl., ECF No. 15; Defs. Mem. in Support, ECF No. 25-1
(“The defendants do not object to this Court granting
the amendment request but, as set forth in greater detail
below, renew their motion to dismiss in part on grounds
similar to those raised previously.”). Instead, they
move to dismiss Plaintiff's ADA Title II claims against
the Judicial Department and any official capacity defendant,
arguing that Title I serves as the exclusive ADA remedy.
also move to dismiss the Rehabilitation Act claims against
the official capacity defendants, arguing that the Judicial
Department was the proper defendant. Id. Finally,
Defendants move to dismiss claims alleged against Defendants
Albert and Coon brought under § 1983 in their individual
capacity. Defendants argue that “Plaintiff alleges no
facts whatsoever in support of her First Amendment §
1983 claim, thus almost by definition it fails to state a
claim and must be dismissed pursuant to F.R.C.P
12(b)(6).” Id. at 6. The § 1983 equal
protection claims fail, they argue, because disability is not
a suspect classification and claims “premised upon
substantive rights provided by the ADA” are not
“actionable under Section 1983.” Id. at
7 (quoting Eskenazi-McGibney v. Connetquot Cent. Sch.
Dist., 84 F.Supp.3d 221, 235-36 (E.D.N.Y. 2015)).
September 27, 2017, Defendants filed a reply noting Ms.
Barone's failure to respond to the second motion to
dismiss. See Def. Rep. at 1, ECF No. 28. Defendants
argued that “[t]he unopposed Motion to Dismiss may be
granted pursuant to Local Rule 7(a)(1) . . . .”
Barone then moved to file an out of time brief on October 2,
2017. Pl. Mot. for Leave to File, ECF No. 29. She does not
contest the motion to dismiss the ADA claims, the claims as
to Defendants Albert and Coon under the Rehabilitation Act,
and the § 1983 equal protection claims. Pl. Opp. at 1,
ECF No. 30.
does, however, argue that the motion should be denied with
respect to her First Amendment claims. Id. at 2. She
argues that she “pled detailed pattern [sic] of
harassment, pre-textual discipline and ultimately dismissal,
all inspired, at least in part, by the individually named
defendants' animus against her for filing a CHRO
complaint.” Id. She also argues she alleged a
“pattern and practice of harassment and
intimidation.” Id. Therefore, “[t]hese
facts place the defendants on notice that they are facing a
claim of retaliating against the plaintiff for seeking relief
in a quasi-judicial forum in derogation of her First
Amendment right to do so.” Id. at 3.
Court held oral argument on February 21, 2018. See
Minute Entry, ECF No. 35. It also granted Defendants'
request for supplemental briefing. Order, ECF No. 34.
Defendants filed a supplemental brief on March 6, 2018.
See Defs. Suppl. Br., ECF No. 36. In it, they argued
for the first time that Ms. Barone had failed to allege
speech on a matter of public concern and therefore failed to
allege she engaged in speech protected under the First
Amendment. Id. at 3-6. They also argued, again for
the first time, that the individual Defendants were entitled
to qualified immunity. Id. at 11.
STANDARDS OF REVIEW