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Vivian Concepcion v. Continuum of Care

United States District Court, D. Connecticut

December 12, 2018

VIVIAN CONCEPCION, Plaintiff,
v.
CONTINUUM OF CARE, Defendant.

          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 ...


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