United States District Court, D. Connecticut
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 ...