United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANT'S
MOTION TO DISMISS THE SECOND AMENDED COMPLAINT
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss the Second Amended Complaint
(SAC) under Federal Rule of Civil Procedure 12(b)(6) filed by
Defendants Jamie Mirabilio and the Academy of Medical
Training (“Defendants”). The Motion to Dismiss
challenges all seven counts of the SAC, which are as follows:
(1) Intentional Infliction of Emotional Distress; (2) Race
and Religious Discrimination under Title VI of the Civil
Rights Act; (3) Discrimination and Failure to Accommodate
under the Americans with Disabilities Act; (4) Retaliation
under Title VI; (5) Violation of the Rehabilitation Act of
1973; (6) Breach of Contract; and (7) violation of four
Connecticut statutes. Plaintiff Tema Shore opposes the Motion
as to all counts. For the reasons discussed below,
Defendant's Motion is granted.
Second Amended Complaint (“SAC”) details the
factual basis for Plaintiff's claims chronologically. The
facts alleged in the SAC are taken as true and construed in
the light most favorable to Plaintiff for the purpose of a
motion to dismiss. Conley v. Gibson, 355 U.S. 41,
enrolled in Defendant Academy of Medical Training (AMT) to
pursue a certification as a nurse's aid, phlebotomist,
and patient care technician. SAC at 4. Plaintiff alleges
that, on information and belief, AMT receives substantial
state and federal funds from programs such as CT Works, SNAP,
and others. SAC at 5. AMT's “sole owner or
proprietor” is Ms. Mirabilio. Id. at 6.
started classes on or about May 5, 2014. Id. She is
a recipient of supplemental nutrition assistance program
(SNAP) benefits and alleges the State of Connecticut provided
her tuition assistance. Id. at 4-5. Plaintiff
attached a document to her Opposition which details a
Connecticut program by which SNAP recipients may be eligible
to participate in a SNAP Employment and Training (E&T).
[Dkt. 39.] The E&T program is administered by
Connecticut's Department of Social Services (DSS), and
the document Plaintiff provides lists organizations which
partner with DSS to provide E&T program services, which
does not include AMT. Id. Plaintiff affirmatively
alleges that SNAP paid her AMT tuition. SAC at 4-5.
enrolling at AMT, Plaintiff informed AMT that she requires
extra time on written exams due to a learning processing
disorder and cannot attend class on certain days due to her
religion (Orthodox Jewish). SAC at 5. She does not allege
when or how she informed AMT, whether or how they responded
or whether they agreed to make any accommodation(s).
Plaintiff missed class on June 4 through 7, 2014 for the
holiday of Shavuot. Id. At some unspecified time,
her instructor, Tim Roberts, declined to reschedule classes
coinciding with the holiday and declined to review lessons
Plaintiff missed. Id. Plaintiff asserts she
“complained about Tim to Ms. Mirabilio, ” but Ms.
Mirabilio “took no actions to stop his behavior.”
Id. at 6. Plaintiff does not allege when she voiced
this complaint, the forum in which she voiced it, or the
substance of the complaint. Id. Plaintiff alleges
she made her unspecified complaint at the end of a paragraph
in the SAC which discusses Mr. Roberts refusal to reschedule
her classes, and the Court assumes from that context that the
complaint concerned rescheduling. Id.
final two weeks of the course, Mr. Roberts told Plaintiff she
was “like a fifth grader, ” “not too swift,
” “slow, ” and “stupid.” SAC at
5-6. He also asked if Plaintiff covered her hair because it
was “kinky” and asked her to uncover her hair
prior to her divorce even though doing so was against her
religion. Id. at 6. While Plaintiff alleges she
“informed AMT that she required accommodations on
account of . . . her religion (Orthodox Jewish) which would
require her to modify certain times and dates of attendance,
” she does not allege she informed Mr. Roberts of her
religion or of the fact that it was against her religion to
uncover her hair prior to her divorce. Id. at 5-6.
Plaintiff does not allege that she told Ms. Mirabilio or
anyone else at AMT about Mr. Roberts' comments prior to
her expulsion. Rather, Plaintiff only alleges she
“complained” to Ms. Mirabilio that Mr. Roberts
refused to reschedule classes. SAC at 6.
final day of class, prospective students were touring the
school. Plaintiff encountered the prospective students and
told them Mr. Roberts criticized her, demeaned her, and
favored certain students over others. Id. Ms.
Mirabilio expelled Plaintiff based on her comments to the
prospective students. Id.
to her expulsion, Plaintiff was scheduled to take external
licensing exams for certification as a certified nurse's
assistant and in phlebotomy at a testing location on
AMT's campus. Id. at 7. Plaintiff alleges she
“passed all the tests and performed all the
‘sticks' required for the phlebotomy test, ”
but does not allege that she completed the phlebotomy
training she missed during Shavuot, or that tests and
‘sticks' were the only qualifications for the
phlebotomy certification test, and does not allege she met
all the qualifications required to take the certified
nurse's assistant exam. SAC at 8, 14.
her expulsion, and without completing her training, Plaintiff
asked for permission to take the external licensing exams.
Id. at 7. Ms. Mirabilio refused Plaintiff's
request and cancelled her test slots. Id. Plaintiff
also emailed Ms. Mirabilio and asserted her teacher acted in
a sexually inappropriate manner, discriminated against her on
the basis of her learning disability and religion, and
refused to reschedule classes which took place over Shavuot.
Id. The SAC does not indicate whether Ms. Mirabilio
communicated this orally or in writing. Ms. Mirabilio also
told Plaintiff, via email, that her attorney advised her not
to allow Plaintiff onto AMT's property and cautioned that
if Plaintiff were to contact the Connecticut Human Rights
Organization (CHRO) or an attorney, Ms. Mirabilio would be
unable to reschedule Plaintiff's exams or otherwise
contact Plaintiff. Id. at 7-8.
survive a Motion to Dismiss under Federal Rule of Civil
Procedure 12(b)(6), the complaint must plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In considering a motion
to dismiss for failure to state a claim, the Court should
follow a “two-pronged approach” to evaluate the
sufficiency of the complaint. Hayden v. Paterson,
594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the
assumption of truth.'” Id. (quoting
Iqbal, 556 U.S. at 679). “At the second step,
a court should determine whether the ‘well-pleaded
factual allegations, ' assumed to be true,
‘plausibly give rise to an entitlement to
relief.'” Id. (quoting Iqbal, 556
U.S. at 679). “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.”
Iqbal, 556 U.S. at 678 (internal quotations
Count One: Intentional Infliction of Emotional
alleges Defendants committed IIED by “refusing to
control Tim's objectionable behavior during the last two
weeks of the program; siding with Tim against Ms. Shore both
before and during the expulsion; and cancelling Ms.
Shore's test without her consent.” SAC at 9.
Tim's “objectionable behavior, ” as described
elsewhere in the SAC, plausibly includes his statements to
Ms. Shore that she was “like a 5th grader,
” “not too swift, ” “slow, ”
and “stupid, ” as well as his asking Ms. Shore if
she covered her hair because it was “kinky, ” and
repeatedly asking Ms. Shore to uncover her hair. SAC at 6.
Connecticut law, a plaintiff seeking to establish intentional
infliction of emotional distress must show: “(1) that
the actor intended to inflict emotional distress or that he
knew or should have known that the emotional distress was a
likely result of his conduct; (2) that the conduct was
extreme and outrageous; (3) that the defendant's conduct
was the cause of the plaintiff's distress; and (4) that
the distress suffered by the plaintiff was severe.”
Appleton v. Bd. Of Ed. Of the Town of Stonington,
254 Conn. 205, 210 (Conn. 2000). “Whether the
defendant's conduct is sufficient to satisfy the
requirement that it be extreme and outrageous is initially a
question for the court to determine. Only where reasonable
minds disagree does it become an issue for the jury.”
defeat a motion to dismiss, a plaintiff must show that he
will be able to establish conduct which “exceed[ed] all
bounds usually tolerated by decent society.” Petyan
v. Ellis, 200 Conn. 243, 254 n.5 (Conn. 1986). Conduct
is sufficiently objectionable when a “recitation of the
facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
‘Outrageous!'” 254 Conn. at 211. “Mere
insults, indignities, or annoyances that are not extreme or
outrageous will not suffice.” Brown v. Ellis,
40 Conn.Supp. 165, 167 (Conn. Sup. Ct. 1984). However,
allegations that the defendant knowingly exploited a
particular susceptibility of the plaintiff are sufficient to
survive dismissal. See Mellaly v. Eastman Kodak Co.
42 Conn.Supp. 17, 21, 597 A.2d 846, 848 (Conn. Super. Ct.
1991) (finding IIED sufficiently pled where defendant knew
plaintiff was a recovering alcoholic and “taunted and
harassed the plaintiff about his alcoholism and recover,
urging the plaintiff to handle his alcohol and go get drunk,
” and “frequently telephon[ed] the plaintiff at
home, on days off, and or vacation days” and
“frequently threatened the plaintiff with the loss of
the plaintiff's job”).
asserts the SAC fails to allege “extreme and
outrageous” conduct sufficient to state a claim for
IED. Motion at 9-10. In support, Defendant cites Faiaz v.
Colgate Univ., 64 F.Supp.3d 336, 364 (N.D.N.Y. 2014). In
that case, the plaintiff asserted he was subjected to a
lengthy interrogation connected with his expulsion and was
given nothing to eat, but the court found those actions not
extreme and outrageous because the complaint stated that at
7:30pm plaintiff stated he was faint and dizzy from lack of
food, and half an hour later he was provided a sandwich.
Id. Defendant argues the conduct in this case is
comparable and likewise does not constitute extreme and
also challenges the idea that discrimination or sexual
harassment, on their own, could support an IIED claim. In
support, Defendant cites Joseph v. United Techs.
Corp., Civ. No. 14-cv-424, 2015 WL 851895, at *7 (D.
Conn. Feb. 26, 2015), which is limited to the employment
context and requires allegations regarding the
defendant's actual conduct, as well as his discriminatory
motive, to support IIED. Defendant cites no cases outside the
employment context regarding the discrimination or harassment
responds that she has sufficiently pled extreme and
outrageous conduct, but fails to cite cases outside the
employment context in support. The Court's own research
confirms that Plaintiff's IIED claims must fail.
Plaintiff's allegation that she suffered IIED due to Mr.
Roberts' racially derogatory comments during the last two
weeks of the program fails because Defendants may not be held
vicariously liable for those comments.Sangan v.
Yale Univ., 2006 WL 2682240, at *8 (D. Conn. Sept. 15,
2006) (finding no vicarious liability where a school failed
to intervene and stop a laboratory supervisor from harassing
a graduate student); Kilduff v. Cosential, Inc., 289
F.Supp.2d 12, 22 (D. Conn. 2003) (dismissing an IIED claim
against an employer where the plaintiff alleged her employer
failed to act in the face of her complaint which detailed
sexually harassing conduct by her supervisor); Sowemimo
v. D.A.O.R. Sec., Inc., 43 F.Supp.2d 477, 492 (S.D.N.Y.
1999) (finding that “even if [the employer] failed to
adequately respond to [the plaintiff's] reports of
harassment and discharged her based on a retaliatory motive,
such action is not sufficient to meet the high threshold of
extreme and outrageous conduct”). The SAC provides
insufficient allegations for the Court to conclude that Ms.
Mirabilio or anyone else at AMT even knew about Mr.
Roberts' alleged derogatory comments. The only indication
in the SAC that Plaintiff alerted anyone about Mr.
Roberts' behavior does not state the substance of
Plaintiff's complaint to Ms. Mirabilio, but appears at
the end of a paragraph describing Mr. Roberts' decision
not to reschedule her classes. SAC at 6. Even if Defendants
did know about Mr. Roberts' derogatory comments, they are
not liable for IIED for failing “to respond [to], or to
prevent, or choosing to ignore” Mr. Roberts'
behavior. Sangan v. Yale Univ., No. 3:06-cv-587,
2006 WL 2682240, at *8 (D. Conn. Sept. 15, 2006) (citing the
Restatement (Second) of Torts § 46 cmt. d (1965)
(dismissing an IIED claim against Yale University for failing
to stop a laboratory ...