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Dighello v. Thurston Foods, Inc.

United States District Court, D. Connecticut

May 9, 2018

JUDITH DIGHELLO, Plaintiff,
v.
THURSTON FOODS, INC., Defendant.

          RULING ON DEFENDANT'S MOTION TO DISMISS [DOC. 16]

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE

         In this employment discrimination and wrongful discharge case, defendant and former employer Thurston Foods, Inc. ("Thurston") moves the Court to dismiss three of Plaintiff Judith Dighello's claims. The Court resolves the motion herein.

         I. BACKGROUND

         The facts summarized in this Ruling are extracted from the allegations of Plaintiff's Complaint. In March of 2011, Plaintiff commenced employment with Defendant Thurston, a wholesale food service distributor, as a router and dispatcher. Doc. 1 ("Complaint"), ¶ 6. In that position, she coordinated routes for the company's delivery trucks and drivers. Id. Plaintiff alleges that due to the doubling of her workload over time and "the fact that she was instructed to coordinate deliveries for approximately fifty-five (55) vehicles, " Thurston required her to work "twelve and a half (12.5) hour shifts, without breaks for lunch or rest, each day." Id., ¶ 9.

         In early April 2015, Plaintiff became ill "with walking pneumonia and a respiratory infection." Id., ¶ 10. According to Plaintiff, her physician instructed her to remain out of work for two days. Id. Plaintiff provided Thurston with a copy of an "out-of-work note from her physician." Id. In response to the note, Thurston informed her that she was not entitled to sick pay. Id., ¶ 11. When Plaintiff returned to work two days later, she informed Thurston's management that she would need to "lighten her work load, at least temporarily, until her symptoms improved." Id., ¶ 12. Thurston's management then allegedly reminded her that she was not permitted to take breaks and that she must work twelve and a half hour shifts. Id.

         Plaintiff further alleges that on or around the time of her illness, Thurston "hired a male employee named Art (last name unknown), " whom she believes was "hired to replace" her. Id., ¶ 13. Art worked with Plaintiff for a period of time and also went to classes "to learn how to perform the [P]laintiff's job duties." Id., ¶ 14. Moreover, around this time, Bob Thurston, the Defendant's secretary and head of transportation, told Plaintiff, "Women should not be hired for this position" because they "are too weak for this job." Id., ¶ 15.

         Shortly thereafter, Plaintiff suffered a bronchial asthma attack while in the office and went to MidState Medical Center in Meriden for emergency treatment. Id., ¶ 16. While at the medical center, she "underwent x-rays, was prescribed an inhaler, and was put on medication." Id., ¶ 17. When Plaintiff returned to work, "and despite her condition, " she was "again instructed by [her employer] that she was still required to work the full twelve and a half (12.5) hour shifts, without breaks for rest or lunch." Id., ¶ 17.

         During late April 2015, "in response to a failed EPA inspection, " Bob Thurston instructed Plaintiff to assemble logs for the EPA, describing how much fuel was dispensed to each of approximately fifty (50) separate drivers dating back two weeks. Id., ¶ 29. Plaintiff informed Bob Thurston that "she was already busy handling dispatch and routing" and "was already working twelve and a half (12.5) hours per day." Id. , ¶ 30. She suggested that "another employee could easily handle the task" of assembling the logs, but Bob Thurston responded by instructing her to "come in earlier and get it done." Id.

         On or about May 7, 2015, after compiling the forms from information provided by Jim Thurston, another representative of Defendant, Plaintiff submitted the requested report to Bob Thurston. Id., ¶ 32. Bob reacted by waving the pages of the report in front of Plaintiffs face and "screaming at her" in front of ten other employees, complaining "that the numbers contained in the report did not match." Id. Plaintiff informed him that she "had checked the math on the reports three times" and "understood that the numbers did not match." Id., ¶ 33. Nevertheless, she had input the information that Jim Thurston had provided. Id. Bob Thurston continued with his "verbal tirade, " this time accusing Plaintiff of not knowing how to do math.[1] Id., ¶ 34. He concluded by screaming, "I have to do your job myself, because you're incompetent." Id., ¶ 35.

         "[S]haking in fear and embarrassment, " Plaintiff informed the human resources representative that she needed to take a break, and she proceeded to walk to the parking lot." Id., ¶ 36. Jim met her there to apologize for Bob's behavior, stating, "Bob is way too intense." Id., ¶ 37. Plaintiff thereafter went down the street to purchase a coffee and calm down. Id., ¶ 38. She called to speak with her supervisor, Greg, and requested the cell phone number of Defendant's human resources representative. Id., ¶ 39. Greg told her "not to come back until she spoke with the human resources representative." Id., ¶ 40. Plaintiff then asked Greg if Art had been hired to replace her, to which Greg responded, "I don't know." Id 1 Specifically, Bob Thurston allegedly screamed, "Don't you know how to do math? I knew how to do math when I was six years old in kindergarten." Doc. 1, ¶ 34.

         Subsequently, the human resources representative phoned Plaintiff to say that the problem with the logs was that the receipts Jim Thurston provided her were "incomplete." Id., ¶ 41. Plaintiff then protested that, in any event, assembling the logs was not part of her job; but the representative countered, stating that "We do not have job descriptions" so that "[w]hat we give you to do is in your job description." Id., ¶ 42.

         Plaintiff then complained that "she felt she was being threatened and was being subject[ed] to a hostile work environment." Id., ¶ 43. The representative was unsympathetic, telling her, "Being hostile isn't illegal." Id. Moreover, if she could not handle "yelling and screaming, maybe this [was]n't the job for [her]." Id. Plaintiff then asked whether she was fired, but received no response, and the conversation ended. Id., ¶ 44. Afterward, Plaintiff texted Greg, asking, "Am I fired?" Id., ¶ 45.

         Two hours later, Greg replied by texting that she had left the company "high and dry on break" and there was "no need for 2 weeks of notice." Id., ¶ 46. He also texted that "we will pack your stuff. Tell me where were can meet tonight to give you your stuff." Id. After that exchange with Greg, Plaintiff was not allowed back into Defendant's facility, even to retrieve her coat; and her cell phone was shut off within two hours. Id., ¶ 47.

         Under these circumstances, Plaintiff alleges she was wrongfully terminated on May 7, 2015. Id., ¶ 48. In particular, Plaintiff alleges that she was discriminated against on the basis of her sex/gender, treated disparately as compared with similarly situated male employees, subjected to a hostile work environment, and replaced by a male employee with less experience. Id., ¶ 49.

         In her Complaint, Plaintiff alleges nine causes of action.[2] In the first three counts of her Complaint, Plaintiff alleges violations under Connecticut's Fair Employment Practices Act ("CFEPA"), Conn. Gen. Stat. § 46a-60(a)(1). These include the "First Count" for discrimination based on "sex/gender" and wrongful termination; the "Second Count" for disability discrimination, perceived disability discrimination, and wrongful termination; and the "Third Count" for failure to accommodate. In her fourth and fifth counts, Plaintiff includes two retaliation claims: the "Fourth Count" for retaliation in violation of Conn. Gen. Stat. § 46a-60(a)(4) and the "Fifth Count" for retaliation in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2612, et seq. Also, under the FMLA, Plaintiff pleads the "Sixth Count" for alleged interference in violation of the FMLA. In addition, Plaintiff includes two state tort claims as the "Seventh Count" and "Eighth Count": intentional infliction of emotional distress and common law wrongful discharge, respectively. Finally, Plaintiff sets forth a "Ninth Count, " alleging that by terminating Plaintiff for exercising her federal and state constitutional rights to free speech, Thurston violated Conn. Gen. Stat. § 31-51q.

         Pending before the Court is Defendant's "Motion to Dismiss" [Doc. 16] in which Thurston requests that the Court dismiss three of Plaintiff's claims for "failure to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6). Thurston requests the Court to dismiss the following three counts: (1) the Fifth Count in that Plaintiff "has failed to adequately allege that she exercised rights under the Family Medical Leave Act" ("FMLA"); (2) the Sixth Count because Plaintiff "has failed to allege that she requested [leave under] the [FMLA] or exercised any rights under the FMLA" and /or that she "was denied any requested leave;" and (3) the Eighth Count because Plaintiff has "failed to allege the lack of a statutory remedy which is fatal to her claim." Doc. 16, at 1.

         II. DISCUSSION

         A. Standard of Review - Rule 12(b)(6), Fed. R. Civ. P.

         The standard of review for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), "for failure to state a claim upon which relief can be granted, " is set forth in the United States Supreme Court's seminal holding of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under Iqbal, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S 544, 570 (2007)).[3] "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." Iqbal, 556 U.S. at 678. The complaint must provide "more than the unadorned, the-defendant-unlawfully-harmed-me accusation." Id. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555).

         "[W]hether a complaint states a plausible claim for relief will [ultimately] . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 663-64. When "well-pleaded factual allegations" are present, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. Factual disputes do not factor into a plausibility analysis under Iqbal and its progeny.

         "Although all allegations contained in the complaint are assumed to be true, this tenet is 'inapplicable to legal conclusions.'" LaMagna v. Brown, 474 Fed.Appx. 788, 789 (2d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). See also Amaker v. New York State Dept. of Corr. Servs., 435 Fed.Appx. 52, 54 (2d Cir. 2011) (same). Accordingly, the Court is not "bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted)). Consequently, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         B. Fifth Count (Retaliation in Violation of FMLA) and Sixth Count (Interference in Violation of FMLA)

         For purposes of the present motion, the Court reviews the allegations in Plaintiff's Fifth and Sixth Counts to determine whether they state plausible claims for relief under the Family and Medical Leave Act. In this review, the Court "accept[s] all factual claims in the complaint as true and draw[s] all reasonable inferences in the plaintiff's favor." In re Kingate Mgmt. Ltd. Litig., 784 F.3d 128, 135 n.11 (2d Cir. 2015).

         1. Standard of Law

         The Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., provides employees with distinct rights to take leave under certain medical circumstances. First, it "generally requires covered employers to grant employees who have worked for twelve months (or 1250 hours in twelve months) up to twelve weeks' leave during any twelve month period for, inter alia, a 'serious health condition that makes the employee unable to perform the functions of the position of such employee.'" Hale v. Mann, 219 F.3d 61, 68 (2d Cir. 2000) (quoting 29 U.S.C. § 2612(a)(1)(D)). The FMLA also allows an eligible employee to take "a total of 12 workweeks of leave during any 12-month period . . . [i]n order to care for the spouse, or a son, daughter, or parent, of the employee, " if such relative "has a serious health condition . . . ."[4] 29 U.S.C. § 2612(a)(1)(C). Furthermore, the FMLA "protects an employee from discharge or demotion by an employer if that action is motivated by the employee's taking of leave pursuant to the FMLA." Hale, 219 F.3d at 68 (citing 29 U.S.C. § 2614(a)(1)).

         The Second Circuit recognizes two types of FMLA claim: retaliation and interference. See Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004) (per curiam). To plead an FMLA retaliation claim, one must establish: "1) he exercised rights protected under the FMLA; 2) he was qualified for his position; 3) he suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent." Potenza, 365 F.3d at 168. See also Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012) (applying FMLA retaliation elements set forth in Potenza).

         If one brings a retaliation claim, alleging that an employer has retaliated for an employee's exercise of FMLA rights, the Second Circuit employs the McDonnell Douglas burden-shifting analysis.[5] See Potenza., 365 F.3d at 168 ("In the context of [Plaintiff]'s claim, the retaliation analysis pursuant to McDonnell Douglas is applicable."). See also Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir. 2016) ("We will analyze the retaliation claims brought pursuant to the FMLA under the burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973)).[6]

         Alternatively, "to prevail on a claim of interference with her FMLA rights, a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA." Graziadio, 817 F.3d at 424. See also Coutard v. Mun. Credit Union, 848 F.3d 102, 108 (2d Cir. 2017) (quoting 5 Graziadio elements and noting that "our Court has 'formally adopt[ed]' this 'standard regularly used by district courts of this Circuit' - . . . [for a plaintiff] to prevail on an interference claim") (quoting Graziadio, 817 F.3d at 424).

         2. Fifth Count - Retaliation in Violation of FMLA

         As set forth supra, in order to state a plausible FMLA retaliation claim, Plaintiff must plead sufficient facts to establish the four requisite elements. Solely for purposes of the motion, "Defendant concedes that the Complaint alleges that: Plaintiff was at least minimally qualified for her position; Plaintiff suffered an adverse employment action; and such adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent." Doc. 17, at 5. However, Defendant asserts that the "Complaint fails to allege any facts establishing the first element of the prima facie case - i.e., that Plaintiff sought to exercise rights under the FMLA." Id., at 6.

         In order to exercise rights under the FMLA, one must request FMLA leave due to a qualifying illness or condition. See, e.g., Hahn v. Office & Prof'l Employees Int'l Union, Local 153, No. 13-CV-946 (JGK), 2016 WL 4120517, at *5 (S.D.N.Y. July 22, 2016) (citing Wahl v. Cty. of Suffolk, 466 Fed.Appx. 17, 20 (2d Cir. 2012) (summary order) (holding that an employee who chose to use his employer's sick leave policy instead of FMLA leave had not exercised his FMLA rights)). Although one need not expressly invoke the statute, one must at least provide "a basis for her leave that qualifies under the FMLA." Brown v. The Pension Boards, 488 F.Supp.2d 395, 408-09 (S.D.N.Y. 2007) (citation omitted). See also Slaughter v. Am. Bldg. Maint. Co. of New York, 64 F.Supp.2d 319, 326 (S.D.N.Y. 1999) ("[T]o invoke the protection of the FMLA, an employee must provide notice and a qualifying reason for requesting the leave.") (quoting Brohm v. JH Properties, Inc., 149 F.3d 517, 523 (6th Cir. 1998)); Basso v. Potter, 596 F.Supp.2d 324, 338 (D. Conn. 2009) ("[T]he FMLA does not require an employer to be clairvoyant.") (citations and internal quotations marks omitted); McNamara v. Trinity Coll., No. 3:12CV363 JBA, 2013 WL 164221, at *4 (D. Conn. Jan. 15, 2013) (For purposes of notice under the FMLA, "[t]he critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition.") (quoting Darboe v. Staples, Inc., 243 F.Supp.2d 5, 17 (S.D.N.Y. 2003)).

         In its 2009 regulations, the United States Department of Labor addressed the required content of notice under the FMLA. See 29 C.F.R. §§ 825.302(c); 825.303(b). Under those regulations, if the illness is foreseeable, the employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." 29 C.F.R § 825.302(c). "Depending on the situation, such information may include[, inter alia, ] that a condition renders the employee unable to perform the functions of the job; that the employee . . . has been hospitalized overnight; whether the employee or the employee's family member is under the continuing care of a health care provider; if the leave is due to a qualifying exigency, . . . and that the requested leave is for one of the reasons listed in § 825.126(b)." Id.

         "When an employee seeks leave for the first time for a[n] FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Id. Moreover, "[i]n all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken." Id. "In the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious health condition and may request medical certification to support the need for such leave." Id.

         If the need for the leave is unforeseeable - such as a sudden illness, "an employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request." Id. § 825.303 (b).[7] Moreover, "[c]alling in "sick" without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act."[8] Id.

         To qualify as a basis for FMLA leave, one must have a "serious health condition, " which is defined as "an illness, injury, impairment, or physical or mental condition that involves" either "inpatient care" in a medical facility or "continuing treatment by a health care provider." 29 U.S.C. § 2611 (11)(A)-(B). See also 29 C.F.R. § 825.113(a).[9] Notice must, therefore, reference or describe such a serious health condition to place an employer on notice of FMLA leave.

         Then, "[u]nder the FMLA, the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave." Tambash v. St. Bonaventure Univ., No. 99CV967, 2004 WL 2191566, at *10 (W.D.N.Y. Sept. 24, 2004) (citations and internal quotation marks omitted.). As stated in the regulations, in making the requisite notification, "[a]n employee seeking leave need not expressly invoke the FMLA." Brown, 488 F.Supp.2d at 408-09. "[I]t is sufficient that she give a basis for her leave that qualifies under the FMLA." Id.

         Examining the facts in the instant case, the Court must determine whether the notice Plaintiff gave to Thurston regarding illnesses on two occasions included a qualifying basis under the FMLA. To qualify as such a basis, there must be a "serious health condition" pursuant to 29 U.S.C. § 2611 (11)(A)-(B). Such an illness, injury, impairment or condition must involve either "inpatient care, " in a hospital, hospice or medical care facility, or "continuing treatment by a health care provider." Id.

         a. Walking Pneumonia/Respiratory Infection

         In the case at bar, Plaintiff alleges that in early April 2015, she was diagnosed with walking pneumonia and a respiratory infection, and her physician instructed her to stay out of work for two days. Doc. 1, ¶ 10. She communicated this information to her employer through a doctor's note. Id. ("At that time, the plaintiff provided the defendant company with a copy of an out-of-work note from her physician."). Plaintiff does not convey the exact content of the note, but the implication is that it "instructed her to remain out of work for two (2) days." Id. In response to receipt of the note, Thurston allegedly informed Plaintiff that she "was not entitled to sick pay" but granted two days of leave, as recommended by her doctor. Id., ¶¶ 11-12. After her two days of leave, Plaintiff returned to work but informed management that she needed to temporarily "lighten her work load" until her symptoms improved. Id., ¶ 12. There is no allegation that she received further medical treatment or provided another doctor's note to explain this need.

         In response to this new request, Plaintiff alleges that "defendant's management reminded her that she was not permitted to take breaks" and would be "required to work full twelve and a half (12.5) hour shifts." Id., ¶ 12. In other words, there were no measures taken to lighten her work load.

         Plaintiff does not allege that she requested to take any additional days of leave or intermittent leave. Rather, she alleges that she requested to "lighten her work load" while performing the work on her shift. Id.

         With respect to this illness of walking pneumonia and/or respiratory infection, Plaintiff's notice did not provide Thurston with sufficient facts to conclude that said illness was a "serious health condition, " a qualifying basis under the FMLA. Granted, the note indicated that Plaintiff had consulted a doctor and that, per that consultation, she needed two days of leave. However, two days of medical leave do not, in and of themselves, provide notice of a "serious health condition" under the FMLA.

         With Congressional authority, under 29 U.S.C. § 2654, the Department of Labor prescribed substantive regulations regarding the type of illnesses and conditions that qualify as serious health conditions under the FMLA. "From this regulation, the Department of Labor has developed a test for what illnesses qualify as serious health conditions. If an employee is (1) incapacitated for more than three days, (2) seen once by a doctor, and (3) prescribed a course of medication, such [as] an antibiotic, she has a 'serious health condition' worthy of being covered by the FMLA." Boyce v. New York City Mission Soc., 963 F.Supp. 290, 299 (S.D.N.Y. 1997) (citing Department of Labor's "brightline test" in Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028, 1036 (M.D. Tenn. 1995)). See also 29 C.F.R. § 825.113 (defining "serious health condition"); 29 C.F.R. § 825.115(a) ("A serious health condition involving continuing treatment by a health care provider includes any one or more of the following: . . . A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition . . . ").

         According to the allegations of the Complaint, Plaintiff visited a doctor and was given a note that she needed to be absent from work for two days. She provided Thurston with a "copy of an out-of-work note from her physician" with respect to those two days. She did not indicate that she was prescribed a course of medication or that ...


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