United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO
DISMISS [DKT. 27]
Hon.
Vanessa L. Bryant, United States District Judge.
On
November 3, 2017, Plaintiff Vivian Concepcion
(“Plaintiff”) filed the instant employment
discrimination action pro se against her former
employer Defendant Continuum of Care
(“Defendant”). Dkt. 1. On June 29, 2018,
Defendant moved to dismiss. Dkt. 27. The Court granted
Plaintiff's motion for an extension of time to respond to
the motion to dismiss. Dkt. 35. Plaintiff's deadline to
oppose the motion to dismiss was August 20, 2018. Plaintiff
failed to file a response. On October 26, 2018, the Court
ordered Plaintiff to file a response to the motion to dismiss
and notified her that if she failed to do so her complaint
would be dismissed.[1] Dkt. 42. On November 5, 2018, the Court
granted the motion to dismiss. Dkt. 44. For the following
additional reasons, Defendant's motion to dismiss is
GRANTED.
I.
Background
In her
form complaint, Plaintiff states that her action is brought
pursuant to Title VII of the Civil Rights Act of 1964, the
Rehabilitation Act, and the Americans with Disabilities Act
(“ADA”). Dkt. 1. She alleges that Defendant's
conduct was based on her race, sex, and national origin. She
also claims she was discriminated against on the basis of her
anxiety disability, race, and age for promotion. However,
when asked in the form complaint to describe facts
surrounding her discrimination claim, Plaintiff only states
that her supervisor told her that they “were going to
have a supervision” and Plaintiff responded that she
“did not want to participate in a supervision”
because she “did not feel well at the time.”
Id. Next, she claims her supervisor followed her
around the client's home, stated repeatedly that they
needed to do the supervision, and got into Plaintiff's
“personal space.” Id. Plaintiff
previously filed charges with the CHRO. She did not attach a
Notice of Right to Sue letter. She seeks reinstatement and
$120, 000. Id.
Plaintiff
attached a seven-page letter to her form complaint which is
dated July 12, 2015 and addressed to the CHRO.[2] It is unsigned
and there is no indication that it was ever received by the
CHRO. Plaintiff does not expressly incorporate the letter
into the form complaint. In response to the form
complaint's request that Plaintiff explain why she
disputes the CHRO's decision that there was no probable
cause to believe discrimination occurred, she states
“because of my complaint of discrimination with CHRO
papers attach [sic].” Id. The letter
states that it is her response to Defendant's answer
before the CHRO. Id. Plaintiff discusses her job
performance and complaints of discrimination, including
Family and Medical Leave Act (“FMLA”)
interference and retaliation, failure to accommodate and
retaliation under the ADA and race discrimination.
Id. She claims inter alia that Defendant
harassed her and discriminated against her after she
disclosed an anxiety disorder and requested an accommodation.
Id. Plaintiff alleges that she had anxiety,
specifically that she “did not feel comfortable going
down into the basement alone, especially during [her] night
shifts.” Id. Plaintiff acknowledges that it
was every staff person's responsibility to do laundry on
his or her shift and the laundry was located in the basement.
Id. She alleges she requested an accommodation and
provided Defendant with a medical note. Ultimately, she
alleges that Defendant placed her on a final written warning
for failure to do the laundry. Plaintiff was terminated on
July 18, 2015. Plaintiff makes no specific factual
allegations regarding her termination in the form complaint
or the letter attached to it.
Defendant
moves to dismiss the complaint on the grounds that Plaintiff
failed to properly plead exhaustion and failed to exhaust her
claims of race, sex, national origin, age and any claim
related to promotion. See Dkt. 28. Defendant also
argues that Plaintiff's disability discrimination claims
fail to state a claim for relief. Id. In support of
its motion to dismiss, Defendant attaches several exhibits,
including Plaintiff's original complaint before the CHRO
dated May 11, 2015 and Plaintiff's amended complaint
dated March 10, 2016. Id. at Exs. 2, 4.
II.
Consideration of Materials Outside the Complaint
As
explained above, both parties have attached additional
materials to their pleadings. Plaintiff attached a letter
addressed to the CHRO to her form complaint. Defendant
attached several exhibits to its motion to dismiss: (1)
Plaintiff's CHRO complaint dated May 11, 2015, (2) EEOC
notice of charge dated August 5, 2015, (3) Plaintiff's
amended CHRO complaint dated March 10, 2016, and (4) notice
of final agency action dated May 11, 2017. Id. at
Exs. 1-4.
On a
motion to dismiss, the Court is permitted to consider (1)
documents attached to the complaint as an exhibit or
incorporated by reference, (2) matters of which judicial
notice may be taken, and (3) documents either in
plaintiff's possession or of which plaintiff had
knowledge and relied on in filing the complaint. Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002);
see also Mancuso v. Dunbar, No. 3:08-CV-1018 (VLB),
2010 WL 466004, at *4 n.3 (D. Conn. Feb. 5, 2010) (“The
Court may take judicial notice of documentation from
administrative proceedings without converting the current
motion into a motion for summary judgment.”). Here, the
Court will consider the documents submitted by both parties.
Plaintiff filed her letter to the CHRO along with her form
complaint. She does not expressly incorporate the letter into
her complaint, but she references it. The Court finds that
this is sufficient given Plaintiff's pro se
status. The Court will also take judicial notice of the
underlying CHRO complaints submitted by Defendant as exhibits
to its motion to dismiss.
III.
Defendant's Motion to Dismiss for Failure to State a
Claim
Plaintiff
alleges disability discrimination and retaliation, FMLA
interference and retaliation, and discrimination based on
race, sex, age and national origin. Defendant moves to
dismiss the complaint on the grounds that Plaintiff failed to
properly allege exhaustion and failed to exhaust her claims
of race, sex, national origin, age and any claim relation to
promotion. See Dkt. 28. Defendant also argues that
Plaintiff's disability discrimination claims fail to
state a claim for relief. Id.
A.
Legal Standard
“‘To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Sarmiento v. U.S., 678 F.3d 147, 152 (2d Cir. 2012)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). While Rule 8 does not require detailed factual
allegations, “[a] pleading that offers ‘labels
and conclusions' or ‘formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Iqbal, 556 U.S. at 678
(internal citation and quotation omitted). “Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
‘entitlement to relief.'” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (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.” Id. (internal
citations omitted).
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 ...