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Perron v. Estuary Transit District

United States District Court, D. Connecticut

November 8, 2018

NEAL PERRON, Plaintiff,
v.
ESTUARY TRANSIT DISTRICT, Defendant.

          MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS

          WARREN W. EGINTON, SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Neal Perron brought this action against defendant Estuary Transit District, alleging that his termination violated 6 U.S.C. § 1142(a) and (b)(2); plaintiff also asserts a state law claim, alleging retaliation for exercise of his right to freedom of expression. Defendant has moved to dismiss all counts for failure to state a claim. Plaintiff does not oppose dismissal of the alleged violation of Section 1142(a). For the following reasons, defendant's motion to dismiss will be granted.

         BACKGROUND

         For purposes of ruling on this motion to dismiss, the Court accepts the allegations of the complaint as true and draws all inferences in favor of plaintiff.

         Plaintiff is a resident of Connecticut. Defendant is a political subdivision of the state of Connecticut, and a “public transportation agency” as that term is defined in 29 C.F.R. § 1982.101.

         In December 2015, plaintiff began work for defendant as a bus driver. On June 10, 2017, plaintiff reviewed the Driver Vehicle Inspection Report (“DVIR”) for the bus that he was assigned to drive. Plaintiff alleges that DVIRs are required to be completed by drivers before and after the operation of their motor vehicle each day pursuant to defendant's policy as well as federal regulation, 49 CFR § 396.11(a)(3), which prohibits the operation of a vehicle unless any such defect or deficiency has been repaired and is certified as repaired or not requiring repair.

         Plaintiff noted that the driver had indicated that a nail was lodged in one of the tires on the bus. He alleges that the tire had not been repaired, and that the DVIR did not certify that the condition had been repaired or that repair was unnecessary. Plaintiff was concerned that the bus posed an unseen and hazardous condition and that its operation would present an imminent danger of death or serious injury.

         Plaintiff informed a dispatcher that he would not operate the bus because the issue identified on the DVIR had not been repaired and the bus would present an imminent danger. The dispatcher responded that no other buses were available for him to operate. Plaintiff ultimately agreed to operate the bus.

         On June 14, 2017, plaintiff sent a letter to another of defendant's dispatchers, explaining that he was refusing to operate any bus due to defendant's practice of failing to perform necessary repairs and its failure to provide the certification required by the federal regulation. He informed defendant that he was not quitting, leaving or resigning, but that he was declining to operate any bus due to defendant's noncompliance with 49 CFR § 396.11(a)(3), and due to his fear that defendant's buses were unsafe. He indicated that he would return to work once the issue was resolved.

         On June 19, 2017, plaintiff called defendant's Operations Manager, and asked her whether defendant had addressed the issues he identified in his letter. The Operations Manager responded that defendant was still looking into the situation, but that plaintiff was on the schedule for the following day. Later that day, on a phone call with the Operations Manager, plaintiff learned that defendant had investigated his concern, concluded that it was not valid, and was treating plaintiff as having resigned from his employment.

         DISCUSSION

         The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A plaintiff is obliged to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Count One

         In Count One, plaintiff alleges that defendant terminated his employment, in violation of 6 U.S.C. § 1142(a)(1) and (2), because he refused to drive defendant's buses due to his concern that defendant ...


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