Grande v. Hartford Board of Education

          MEMORANDUM OF DECISION RE: DEFENDANTS' MOTION TO DISMISS (ECF NO. 18)

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE.

         Plaintiff John Grande (“Grande” or the “Plaintiff”) filed this action in Connecticut Superior Court on January 7, 2019 against the Hartford Board of Education (the “Board”), Jay Mihalko (“Mihalko”), and the City of Hartford (the “City, ” and, collectively, the “Defendants”). The Defendants removed the case to this Court on February 6, 2019. (ECF No. 1.) The Plaintiff, a physical education teacher for the Hartford school system, brings inter alia, claims pursuant to the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §§ 46a-60 et seq. (Counts One, Two, Five, and Six), and a claim for negligent infliction of emotional distress (Count Eight).^[1] On March 15, 2019, Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) as to Counts One, Two, Five, Six, and Eight of Grande's complaint. (ECF No. 18.) Grande filed an opposition to the motion to dismiss on April 29, 2019 (ECF No. 27), Defendants filed a reply brief in support of their motion on June 3, 2019 (ECF No. 30), and Grande filed a sur- reply with the Court's permission on August 7, 2019. (ECF No. 37.) For the reasons that follow, Defendants' motion is GRANTED.

         Allegations

         Grande was at all relevant times employed by the Board as a physical education teacher at Noah Webster MicroSociety Magnet School in Hartford (“Noah Webster”), where Mihalko served as Principal. (Compl. ¶¶ 1, 3, ECF No. 43.) Grande alleges that he needs to wear headphones at work for protection because he suffers from tinnitus. He alleges that the Defendants discriminated against him by creating a hostile work environment in the face of his disability and by ultimately eliminating his teaching position without justification.

         Specifically, the Plaintiff alleges that he was wearing headphones for his tinnitus while on cafeteria duty on October 10, 2016. (Compl. ¶ 7.) Mihalko asked him for a doctor's note but Grande had not obtained one. (Id. ¶ 8.) Following this incident, Grande alleges that Mihalko began threatening to discipline Grande for insubordination if he continued wearing the headphones and instructed Noah Webster's Vice Principal, Richard Skowronski (“Skowronski”), to tell Grande that he was not permitted to wear the headphones to work. (Id. ¶¶ 8, 10.) Grande emailed both Mihalko and Skowronski to inform them that he believed their conduct constituted workplace harassment (id. ¶¶ 9, 13) and thereafter obtained a doctor's note “stating that it is medically necessary for Plaintiff to wear ear protection for loud noises.” (Id. ¶ 14.) Grande alleges that Mihalko continued to mock him by turning the music down in Grande's class on three separate occasions, even though it was not loud or bothersome. (Id. ¶¶ 15-19.) On December 14, 2016, Mihalko allegedly conducted a review of Grande's class as part of an annual evaluation in which he wrote negative comments about Grande and indicated that Grande “needs improvement” in one of the relevant categories. (Id. ¶¶ 21-22.) Prior to that time, Grande had always received evaluation scores that rated him “effective” to “highly effective.” (Id. ¶ 23.)

         On February 2, 2017, Grande filed a complaint with the Connecticut Commission for Human Rights and Opportunities (“CHRO”). (Id. ¶ 25.) Grande alleges that approximately three weeks later, on February 24, he was called to Mihalko's office and informed that his position was being eliminated at Noah Webster. (Id. ¶ 27.) When asked to provide an explanation Mihalko allegedly stated, “[t]hese are decisions that I have to make to move the school forward.” (Id. ¶ 28.) Grande emailed Mihalko following that meeting and reiterated his belief that he was being harassed. (Id. ¶ 30.) The next day, Grande needed to resolve an issue between two students and Mihalko allegedly complimented Grande for the way that he handled the situation. (Id. ¶¶ 31-32.) A few days later, however, Grande alleges that Mihalko called Grande to his office with Skowronski present and accused Grande of threatening him at the February 24 meeting, which Grande denied. (Id. ¶¶ 33-34.) Grande alleges that Mihalko followed up with a letter memorializing his accusation, which was forwarded to various administrators, including Mihalko's supervisors, and which included a recommendation that Grande participate in harassment training. (Id. ¶¶ 35-36.) Grande responded by sending an email to Mihalko and all those copied on Mihalko's letter and thereafter filed an amended CHRO complaint. (Id. ¶¶ 37, 39.) He alleges that individual(s) from the Board tampered with Grande's evaluation for the 2016-2017 school year after he filed his CHRO complaint in order to cover up the Defendants' hostile treatment, and that witnesses for the Board gave false statements and manipulated the facts at a February 2018 CHRO fact-finding conference. (Id. ¶¶ 44-45.)

         Grande claims that he has suffered severe emotional and mental distress from Defendants' actions resulting in sleeplessness, post-traumatic stress disorder, and anxiety. (Id. ¶ 48.) He also alleges that he hesitated to intervene in a physical altercation between two students because he was aware that he was being video recorded and because of his ongoing concern regarding his hostile work environment. (Id. ¶¶ 40-42.) Because he did not allow himself to engage physically in the altercation, Grande claims that he injured his knee, was placed on worker's compensation for seven weeks, and was unable to perform his part-time work as a stage hand for concerts. (Id. ¶¶ 42-43.)

         Although not alleged in the complaint, the parties acknowledge that the CHRO issued a “Finding of No. Reasonable Cause” on the Plaintiff's CHRO complaint on August 7, 2018, in which it “conclude[d] that there is no reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint.” (Defs.' Mot. Ex. C at 5, ECF No. 18-4; Pl.'s Opp. Ex. A at 5, ECF No. 27-1.) Thereafter, the Plaintiff filed this action in the superior court on January 7, 2019.

         Grande brings hostile work environment, disparate treatment, and retaliation claims against the Board, Mihalko, and the City under the CFEPA and a claim for negligent infliction of emotional distress against the Board and the City. Defendants have moved to dismiss the CFEPA claims because Grande did not obtain a release of jurisdiction from the CHRO and because he failed to exhaust his administrative remedies against Mihalko and the City.^[2] The Board and the City also move to dismiss the claim for negligent infliction of emotional distress pursuant to Fed.R.Civ.P. 12(b)(6).

         Standard of Review

         With respect to the CFEPA claims, although styled as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), Defendants acknowledge that the failure to obtain a release of jurisdiction from the CHRO implicates this Court's subject matter jurisdiction. (See Defs.' Mem. at 6-7.) “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Eliahu v. Jewish Agency for Israel, 919 F.3d 709, 712 (2d Cir. 2019) (per curiam) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Mercer v. Schriro, 337 F.Supp.3d 109, 122 (D. Conn. 2018) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). “In deciding a Rule 12(b)(1) motion, the court may also rely on evidence outside the complaint.” Cortlandt St. Recovery Corp. v. Hellas Telecommunications, S.À.R.L., 790 F.3d 411, 417 (2d Cir. 2015). “[T]he party asserting subject matter jurisdiction ‘bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.'” P. v. Greenwich Bd. of Educ., 929 F.Supp.2d 40, 45-46 (D. Conn. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)).

         With respect to the motion to dismiss the negligent infliction of emotional distress claim under Rule 12(b)(6), the Court must similarly accept the complaint's factual allegations as true and draw inferences in the plaintiff's favor. Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). “In addition to the allegations of the complaint, the Court may also consider matters of which judicial notice may be taken, ” which “include the decisions of an administrative agency.” Hohmann v. GTECH Corp., 910 F.Supp.2d 400, 405 (D. Conn. 2012). The “complaint must ‘state a claim to relief that is plausible on its face, '” setting forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Accordingly, ‘threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 678) (brackets omitted).

         Discussion

         The CFEPA Claims - Counts ...