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Shore v. Mirabilio

United States District Court, D. Connecticut

March 29, 2018

TEMA SHORE Plaintiff,



         I. Introduction

         Before 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.

         II. Factual Background

         The 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, 45-46 (1957).

         Plaintiff 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.

         Plaintiff 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.

         Upon 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.

         In the 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.

         On the 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.

         Prior 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.

         After 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.

         III. Legal Standard

         To 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 omitted).

         IV. Discussion

         a. Count One: Intentional Infliction of Emotional Distress

         The SAC 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.

         Under 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.” Id.

         To 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”).

         Defendant 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 outrageous conduct.

         Defendant 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 claims.

         Plaintiff 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.

         First, 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.[1]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 ยง 46 cmt. d (1965) (dismissing an IIED claim against Yale University for failing to stop a laboratory ...

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