United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO DISMISS [DOC.
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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. Id., ¶ 34. He concluded by
screaming, "I have to do your job myself, because
you're incompetent." Id., ¶ 35.
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.
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., ¶
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.
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.
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.
Complaint, Plaintiff alleges nine causes of
action. 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.
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.
Standard of Review - Rule 12(b)(6), Fed. R. Civ.
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)). "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
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).
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
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).
Fifth Count (Retaliation in Violation of FMLA) and Sixth
Count (Interference in Violation of
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).
Standard of Law
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 . . .
." 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)).
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).
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. 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 . . .
"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).
Fifth Count - Retaliation in Violation of
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.
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
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 §
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."
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). Moreover, "[c]alling in
"sick" without providing more information will not
be considered sufficient notice to trigger an employer's
obligations under the Act." Id.
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). Notice must, therefore, reference or
describe such a serious health condition to place an employer
on notice of FMLA leave.
"[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."
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."
Walking Pneumonia/Respiratory Infection
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.
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.
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.
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.
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 . . . ").
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 ...