United States District Court, D. Connecticut
CHARMANE D. THURMAND, Plaintiff,
UNIVERSITY OF CONNECTICUT, ET AL, Defendants.
RULING ON UCONN DEFENDANTS' MOTION TO DISMISS
(DOC. NO. 20)
C. HALL UNITED STATES DISTRICT JUDGE
Charmane D. Thurmand (“Thurmand”), brings this
claim alleging violations of Title VII of the Civil Rights
Act, the First and Fourteenth Amendments to the United States
Constitution, Article First, Section 4 of the Connecticut
Constitution, the Connecticut Fair Employment Practices Act
(“CFEPA”), and state claims of defamation, false
light, slander of credit, and negligent and intentional
infliction of emotional distress. See Complaint
(Compl.) ¶ 1.
names as defendants the University of Connecticut
(“UConn”); Susan B. Herbst, the President of
UConn; Mun Y. Choi, the Provost of UConn; Kent Holsinger, the
Dean of the UConn Graduate School; Scott Jordan, the UConn
Chief Financial Officer; Stephanie Reitz, the UConn
Spokeswoman; Bruce Gelston, an investigator at UConn's
Officer of Audit, Compliance, and Ethics; and Kimberly Hill,
the UConn Associate Director for Community Standards
(collectively “individual UConn Defendants”).
Also named as defendants are Carol Carson
(“Carson”). the Executive Director of the State
of Connecticut Office of State Ethics; Thomas Jones
(“Jones”), the Ethics Enforcement Officer at the
Connecticut Office of State Ethics; and Mark Wasielewski
(“Wasielewski”), the Deputy Enforcement Officer
of the State of Connecticut Office of State Ethics
(collectively “Ethics Defendants”). The court
previously granted the Ethics Defendants' Motion to
Dismiss (“Mot. to Dismiss”) (Doc No. 15).
See Ruling (Doc. No. 50). Now before the court is
the UConn Defendants' Motion to Dismiss (Doc. No. 20).
reasons set forth below, the Motion to Dismiss is granted in
part and denied in part.
STANDARD OF REVIEW
12(b)(1) Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1), “[a] case is
properly dismissed for lack of subject matter jurisdiction .
. . when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). The
plaintiff bears the burden of proving the existence of
subject matter jurisdiction. Id In determining
whether the plaintiff has met this burden, the court must
accept as true all factual allegations in the complaint and
draw all reasonable inferences in favor of the plaintiff.
Carter v. Healthport Techs., LLC, 882 F.3d 47, 57
(2d Cir. 2016); Aurecchione v. Schoolman Transp. Sys.,
Inc., 426 F.3d 635, 638 (2d Cir. 2005).
12(b)(5) Insufficient Service
to Federal Rule of Civil Procedure 4, an individual may
properly be served either by “following state law for
serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located
or where service is made, ” or by doing any of the
(A) delivering a copy of the summons and of the complaint to
the individual personally; (B) leaving a copy of each at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Civ. P. 4(e).
law provides that “process in any civil action shall be
served by leaving a true and attested copy of it, including
the declaration or complaint, with the defendant, or at his
usual place of abode, in this state.” Conn. Gen. Stat.
§ 52-57(a). Neither Connecticut law nor the Federal
Rules provide for service by mail.
plaintiff fails to effect proper service upon a defendant and
the defendant does not waive service of process pursuant to
Rule 4(d), the plaintiff's action may be subject to
dismissal pursuant to Rule 12(b)(5). “On a Rule
12(b)(5) motion to dismiss, the plaintiff bears the burden of
establishing that service was sufficient.” Khan v.
Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010).
12(b)(6) Failure to State a Claim
Rule of Civil Procedure 8(a) requires a complaint to plead
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. Proc.
8(a). To withstand a motion to dismiss filed pursuant to
Federal Rule of Civil Procedure 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (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.”
Id The plausibility standard is not a probability
requirement; the pleading must show, not merely allege, that
the pleader is entitled to relief. Id. Legal
conclusions and “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, ” are not entitled to a presumption of
truth. Id. However, when reviewing a motion to
dismiss, the court must accept the factual allegations in the
operative complaint as true and draw all reasonable
inferences in the non-movant's favor. See Littlejohn
v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015).
considering a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6), a district court must limit
itself to facts stated in a complaint or in documents
attached to a complaint as exhibits or incorporated in a
complaint by reference. “Of course, it may also
consider matters of which judicial notice may be taken under
Fed.R.Evid. 201.” Kramer v. Time Warner Inc.,
937 F.2d 767, 773 (2d Cir. 1991). Such matters include facts
that “can be accurately and readily determined from
sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201.
was employed by UConn, as the UConn Graduate School's
Diversity Officer, from October 1, 2012 to February 24, 2017.
Compl. ¶ 17. She was also a Ph.D. candidate at the UConn
Graduate School until her expulsion on May 19, 2017.
Id. ¶ 19. Thurman assisted the Graduate
School's Diversity Committee, which is responsible for
awarding various fellowships, scholarships, and grants.
Id. ¶ 26.
was accused of violating her employment code by, inter
alia, deceiving Holsinger, the Dean of the UConn
Graduate School, and illegitimately obtaining a fellowship
for her husband. Id. ¶ 29. Thurmand alleges
that the UConn Defendants conducted a “biased, racially
[motivated, ] and retaliatory investigation of the charges,
” and falsely found that the accusations of theft were
well-founded. See Id. The UConn Defendants conducted
a similarly biased student conduct investigation, with the
same conclusion. Id. ¶ 30. The UConn Defendants
reported a false debt to collection and credit agencies.
Id. ¶ 34. Thurmand faced a hostile work
environment and was subjected ...