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Thurmand v. University of Connecticut

United States District Court, D. Connecticut

April 22, 2019





         Plaintiff, 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.

         She 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).

         For the reasons set forth below, the Motion to Dismiss is granted in part and denied in part.


         A. 12(b)(1) Lack of Subject Matter Jurisdiction

         Under 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).

         B. 12(b)(5) Insufficient Service

         Pursuant 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 following:

(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.

         Fed. R. Civ. P. 4(e).

         Connecticut 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.

         When a 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).

         C. 12(b)(6) Failure to State a Claim

         Federal 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).

         In 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.

         III. FACTS

         Thurmand 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.

         Thurmand 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. ΒΆ 34. Thurmand faced a hostile work environment and was subjected ...

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