Gallagher v. Fairfield et al
ORDER granting in part and denying in part 53 Motion to Dismiss. Signed by Judge Dominic J. Squatrito on 3/27/13. (Glynn, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TOWN OF FAIRFIELD, FAIRFIELD
BOARD OF EDUCATION, ANN
CLARK, DEBORAH JACKSON,
JOHN BOYLE, THOMAS CULLEN,
and SALVATORE MORABITO,
No. 3:10CV1270 (DJS)
RULING ON MOTION TO DISMISS
The plaintiff, Joy Gallagher, initially filed a twelve count complaint against the Town of
Fairfield ("Town"), the Fairfield Board of Education ("Board"), and, in their individual and
official capacities, Ann Clark (Fairfield's Superintendent of Schools), Deborah Jackson (Principal
of North Stratfield Elementary School), John Boyle (Fairfield's Deputy Superintendent of
Schools), Thomas Cullen (Director of Operations), and Salvatore Morabito (Director of Safety,
Security, and Construction). The Court subsequently permitted the plaintiff to file an amended
complaint limited to the following claims against the Board only: Count One - Discrimination
because of disability and failure to accommodate in violation of Title I of the Americans with
Disabilities Act (ADA); Count Two - Retaliation for requesting accommodation in violation of
Title I of the ADA; Count Three - Discrimination because of disability and failure to
accommodate in violation of the Rehabilitation Act; Count Four - Retaliation for requesting
accommodation in violation of the Rehabilitation Act; Count Five - Discrimination because of
disability in violation of the Connecticut Fair Employment Practices Act (CFEPA); and Count
Six - Retaliation for requesting accommodation in violation of CFEPA. The Court also permitted
the plaintiff to include a claim against Ann Clark, Deborah Jackson, John Boyle, Thomas Cullen,
and Salvatore Morabito, in their individual capacities only, for intentional infliction of emotional
The plaintiff's claims relate to events that occurred while she was employed by the Board
as an art teacher at the North Stratfield Elementary School in Fairfield, Connecticut. The plaintiff
alleges that the conditions in which she was required to work caused her to suffer various
illnesses and that when she complained about these conditions, she was subjected to retaliatory
actions, including her eventual termination.
The defendants have moved to dismiss, in part, Counts One, Two, Five and Six of the
amended complaint pursuant to Fed. R. Civ. P. 12(b)(6), contending that these counts, in part,
fail to state a claim upon which relief can be granted. For the reasons stated below, the
defendants' motion to dismiss (doc. # 53) is granted in part and denied in part.
When considering a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court accepts as true
all factual allegations in the complaint and draws inferences from these allegations in the light
most favorable to the plaintiff. See Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013).
Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with
the allegations, it is clear that no relief can be granted. See Cooper v. Parsky, 140 F.3d 433, 440
(2d Cir. 1998). "The issue is not whether plaintiff will prevail, but whether he is entitled to offer
evidence to support his claims." United States v. Yale New Haven Hospital, 727 F. Supp. 784,
786 (D. Conn. 1990) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Although it is true that "a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations," it is equally true that "a plaintiff's obligation to provide the
grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal quotation marks omitted). Enough facts are required to state a
claim that is not merely conceivable, but "that is plausible on its face." Id. at 570. "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." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
In her amended complaint, the plaintiff alleges various acts by one or more of the
defendants that affected her in an adverse manner. These include modifications to her art room
that left the room with no operable windows, no exterior door, and no mechanical air
conditioning or ventilation; ineffective attempts to repair water damage to ceiling tiles in the art
room; the dismantling of a skylight, which caused the release of a cloud of particles and dust into
her art room while she was teaching; the installation of a contaminated air cleaner in her art
room; the replacement of the contaminated air cleaner with a lesser quality cleaner that produced
ions harmful to her; a delay in providing her with specific air cleaning devices in response to her
doctor's request; and the termination of her wages and benefits.
The defendants' motion to dismiss is based on their contention that, with the exception of
the plaintiff's termination, all of these "alleged acts of discrimination and retaliation . . . were not
timely exhausted with the Commission on Human Rights and Opportunities ('CHRO') or the
Equal Employment Opportunity Commission ('EEOC')," (doc. # 54, at 1), and are thus time-3-
barred. Claims of discrimination or retaliation pursuant to CFEPA must be filed with the CHRO
within 180 from the date of the alleged illegal act. Conn. Gen. Stat. §46a-82(f). Claims of
discrimination or retaliation pursuant to the ADA must be filed with the EEOC within 300 days
from the date of the alleged illegal act. 42 U.S.C. §2000e-5(e)(1).
The plaintiff does not contend that the acts alleged in her amended complaint, other than
the termination of her wages and benefits, occurred within the statutory deadlines imposed by the
ADA and CFEPA1. Rather, she contends that as to her discrimination and retaliation claims,
these earlier acts can be considered as background evidence to support her timely claim based on
the termination of her wages and benefits. She further argues that she has alleged a "retaliatory
hostile environment" claim as to which these previous acts may be considered for the purpose of
determining liability, (doc. # 60, at 4), and that her failure to accommodate claim should not be
dismissed as untimely because she "last requested an accommodation in July of 2009" that
"remained outstanding within the statutory limitations period." (Id. at 5). The Court will proceed
to consider the parties' contentions as they apply to each of the counts of the amended complaint
Counts One and Five
In Count One of her amended complaint, the plaintiff alleges violations of the ADA based
on discrimination because of disability and failure to accommodate. In Count Five, the plaintiff
In her memorandum opposing the defendants' motion to dismiss, the plaintiff represents
that she "was given notice in December, 2010, within the statutory time period, that an
'interactive process' was imminent, although it never took place." (Doc. # 60, at 6). This factual
allegation is not included in the amended complaint and will not be considered by the Court for
purposes of ruling on the defendants' motion. See Ribis v. Mike Barnard Chevrolet-Cadillac,
Inc., 468 F. Supp. 2d 489, 495 (W.D.N.Y. 2007) ("a memorandum of law is not a proper vehicle
for rewriting or amending the complaint").
alleges violations of CFEPA based on discrimination because of disability. The defendant argues
that because all alleged acts of discrimination and failure to accommodate, other than the
termination of her wages and benefits, are time-barred, all factual allegations in the amended
complaint that occurred outside the 300 day statutory deadline imposed by the ADA (acts
occurring prior to June 1, 2010) should be dismissed.
For purposes of considering the defendant's motion to dismiss, it is necessary to
distinguish between factual allegations that constitute a claim and factual allegations that can be
used to support a claim. It is true, as contended by the defendant, that "discrete discriminatory
acts are not actionable if time barred, even when they are related to acts alleged in timely filed
charges." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). It is equally
true, however, that "the statute [does not] bar an employee from using the prior acts as
background evidence in support of a timely claim." Id.
In accordance with the Supreme Court's directive in Morgan, the plaintiff's claims of
discrimination in Count One and Count Five based on any act other than the termination of her
wages and benefits are time-barred and thus must be dismissed. The Court further finds that the
plaintiff's contention that an accommodation request she made in July 2009 "remained
outstanding within the statutory limitations period," (doc. # 60, at 5), is unavailing. There is no
mention of a July 209 accommodation request anywhere in the amended complaint. The
plaintiff's claims in Count One and Count Five are limited to alleged discrimination because of
disability based on the termination of her wages and benefits. The Court will not, however,
dismiss from the facts section of the amended complaint factual allegations relating to acts
occurring prior to June 1, 2010, since such acts may constitute "background evidence in support
of a timely claim." Morgan, 536 U.S. at 113.
Counts Two and Six
In Count Two of her amended complaint, the plaintiff alleges violations of the ADA
based on retaliation for having requested accommodations due to her disability. In Count Six, the
plaintiff alleges violations of CFEPA based on retaliation for having requested accommodations
due to her disability. As was the case with respect to Counts One and Five, the defendants
maintain that all of the actions alleged to have been taken by them, other than the termination of
the plaintiff's wages and benefits, occurred beyond the statutory deadlines and that all factual
allegations relating to such time-barred actions should be dismissed.
In addition to her argument that actions of the defendants occurring beyond the statutory
deadlines may constitute background evidence in support of her illegal termination claim, the
plaintiff also maintains in her opposition memorandum that she has alleged a "retaliatory hostile
environment" claim in her amended complaint. (Doc. # 60, at 4). Relying on federal case law
pertaining to actions brought pursuant to Title VII, the plaintiff contends that as long as one act
demonstrating a hostile work environment occurred within the statutory deadline, "the entire time
period of the hostile environment may be considered in determining liability." (Id.). The
defendants counter that "nowhere in Count Two are the elements of an actionable hostile work
environment claim pled." (Doc. # 61, at 3).
It is unclear whether the Second Circuit recognizes a cause of action for hostile work
environment under the ADA. Other circuits that have recognized such a cause of action apply the
standard applicable to hostile work environment claims raised in Title VII cases. Under that
standard, "for a work environment to be sufficiently hostile so as to be actionable, the workplace
must be 'permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
pervasive to alter the conditions of the victim's employment.'" Martinsky v. City of Bridgeport,
814 F. Supp. 2d 130, 151 (D. Conn. 2011) (quoting Kassner v. 2nd Ave. Delicatessen, Inc., 496
F.3d 229, 240 (2d Cir. 2007).
The Court agrees with the defendants that Count Two of the amended complaint does not
plead a distinct hostile work environment cause of action2. The cause of action identified by the
plaintiff in Count Two is "ADA - retaliation for requesting accommodation." (Doc. # 55, at 9).
As previously noted, the Court's ruling granting in part the plaintiff's motion to amend her
original complaint explicitly provided that Count Two of the amended complaint would be
limited to a claim against the Board for "retaliation for requesting accommodation in violation of
Title I of the ADA." (Doc. # 49, at 8). The Court further notes that even if the amended
complaint were construed to include a hostile work environment ADA claim, Count Two does
not, in light of the standard articulated in Kassner, "plead factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
The Court concludes that the plaintiff's claims in Counts Two and Six of retaliation for
having requested accommodations based on any act other than the termination of her wages and
benefits are time-barred and thus must be dismissed. The plaintiff's claims in Counts Two and
Six are limited to alleged retaliation for having requested disability-related accommodations
The plaintiff's hostile work environment argument appears to be based on her claims
under the ADA. The Court's analysis and conclusions would apply equally to an argument based
on CFEPA claims. See Chasse v. Computer Sciences Corp., 453 F. Supp. 2d 503, 514 n.4 (D.
Conn. 2006) ("Claims for violations of the CFEPA are analyzed under the same standards as
claims for violations of the ADA.")
based on the termination of her wages and benefits. Consistent with its treatment of Counts One
and Five, the Court will not dismiss from the facts section of the amended complaint factual
allegations relating to acts occurring prior to June 1, 2010.
For the foregoing reasons, the defendants' motion to dismiss (doc. # 53) is GRANTED in
part and DENIED in part. The plaintiff's claims in Counts One and Five of the amended
complaint are limited to alleged discrimination because of disability based on the termination of
her wages and benefits. The plaintiff's claims in Counts Two and Six of the amended complaint
are limited to alleged retaliation for having requested disability-related accommodations based on
the termination of her wages and benefits.
The Court notes that the plaintiff has requested an opportunity to further amend her
complaint should the Court grant the defendants' motion to dismiss. On or before May 13, 2013,
the plaintiff shall take one of the following two actions: (1)file a second amended complaint
consistent with the provisions of this ruling and order. If the plaintiff chooses to take this action,
she shall modify her amended complaint as follows: as to Count One, delete all of paragraph 28
and that portion of paragraph 29 stating "refused to accommodate plaintiff's disability and"; as to
Count Two, delete that portion of paragraph 35 stating "treating her differently than similarly
situated non-disabled employees and/or by creating a retaliatory hostile environment, and/or" and
that portion of paragraph 36 stating "disparate treatment, hostile environment, and"; as to Count
Five, amend paragraph 53 to read, "The termination of plaintiff's wages and benefits constitutes
an unlawful discriminatory employment practice with the meaning of CFEPA, based on
plaintiff's disability"; as to Count Six, delete that portion of paragraph 59 stating "treating her
differently than similarly situated non-disabled employees and/or by creating a retaliatory hostile
environment, and/or" and that portion of paragraph 60 stating "disparate treatment, hostile
environment, and"; or (2) file a motion to further amend her complaint in compliance with the
requirements of Fed. R. Civ. P. 15 (a)(2).
SO ORDERED this
day of March, 2013.
Dominic J. Squatrito
United States District Judge
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