Consolmagno v. Hospital Of St. Raphael et al

Filing 59

RULING granting 32 Motion to Dismiss; denying 36 Motion to Amend/Correct; denying 45 Motion to Dismiss; and denying 52 Motion to Strike. The clerk is directed to close the case against HSR. Signed by Judge Peter C. Dorsey on 10-11-11. (Miller, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARGARITE CONSOLMAGNO,
Plaintiff,

:
:
:
v.
:
:
HOSPITAL OF ST. RAPHAEL;
:
HOSPITAL OF ST. RAPHAEL SCHOOL :
OF NURSE ANESTHESIA; and
:
ANESTHESIA ASSOCIATES OF
:
NEW HAVEN, P.C.,
:
Defendants.
:

Civ. No. 3:11cv109 (PCD)

CONSOLIDATED RULING ON DEFENDANTS’ PENDING MOTIONS TO DISMISS
AND PLAINTIFF’S MOTION FOR LEAVE TO AMEND
The Plaintiff, Margarite Consolmagno, brought this action for declaratory and injunctive
relief and for damages against the Defendants, the Hospital of St. Raphael (“HSR”), the Hospital
of St. Raphael School of Nurse Anesthesia (the “School”), and Anesthesia Associates of New
Haven, P.C. (“AANH”). Currently pending before the Court are: (1) HSR’s motion, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Plaintiff’s First Amended
Complaint, [Doc. No. 32]; (2) the joint Rule 12(b)(6) motion of the School and AANH [Doc. No.
45]; (3) the Plaintiff’s cross-motion1 for leave to amend her complaint in order to add a new
theory of liability and additional factual allegations [Doc. No. 36]; and (4) the Plaintiff’s motion
to strike the School’s and AANH’s reply submission [Doc. No. 52]. For the reasons stated
herein, HSR’s motion [Doc. No. 32] is granted, the Plaintiff’s cross-motion [Doc. No. 36] is
denied, and the School and AANH’s motion [Doc. No. 45] is denied. The Plaintiff’s motion to
strike [Doc. No. 52] is denied.

1

Although HSR has opposed the cross-motion, the School and AANH have not.

I.

BACKGROUND

Taking the facts the Plaintiff has pleaded in her First Amended Complaint as true and
drawing reasonable inferences in her favor, see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949–50
(2009), she alleges the following. In May 2009, the Plaintiff, a longtime registered nurse and
holder of an advanced degree in nurse anesthesia, enrolled in the Anesthesia Educational
Program (“Program”) of the School in order to obtain Certified Registered Nurse Anesthetist
(CRNA) status. (First Am. Compl. ¶¶ 8-9.) AANH owns and operates the School. Id. ¶ 6.
A.

The relationship between the School, the Program, and HSR. A March 2004

Affiliation Agreement (“Agreement”) governs the relationship between HSR, the School, and the
Program.2 The Agreement calls for the Program to assign students to HSR for clinical internship
experience as part of the Program’s curriculum. (Agreement ¶ 1.) Program participants use HSR
equipment and facilities, id. ¶ 11, but School faculty supervise them, id. ¶ 5, and the School’s
malpractice insurance covers them, id. ¶ 13. Program participants must adhere to HSR’s
policies, rules, and regulations, and the School must instruct the participants on these
requirements and enforce compliance. Id. ¶ 9. Both the School and HSR can terminate any
student’s involvement in the clinical elements of the Program. Id. ¶ 7.
The Agreement states that a student in the Program “is not to be considered under any
circumstances as an employee or agent of [HSR] and shall not receive or be entitled to receive
any compensation from [HSR] in connection with the experience.” Id. ¶ 12. Finally, in the
2

The Plaintiff did not include the Agreement as an exhibit to her pleadings. HSR,
AANH, and the School included it as an exhibit to their respective motions to dismiss. Because
the Plaintiff manifestly relied on the agreement in crafting her complaint, the Court considers it
in this posture without converting HSR’s motion into one for summary judgment. See Chambers
v. Time Warner, Inc., 282 F.3d 147, 152-154 (2d Cir. 2002).
2

Agreement, HSR “agrees and warrants that . . . it will not discriminate or permit discrimination
against any person . . . on the grounds of . . . sex . . . in any manner prohibited by the laws of the
United States or the State of Connecticut[.]” Id. ¶ 27.
B.

The School’s compensation, grading, and sexual harassment policies. The School

also promulgates a Student Handbook (“Handbook”).3 The Handbook sets forth the $125 per
week “Stipend / Student Salary” that “[s]tudents will receive.” (Handbook at 23.) The
Handbook states that AANH pays the students the stipend and provides malpractice insurance
“[f]or the purpose of establishing medical legal responsibility only.” Id. at 4. Program
participants also receive vacation time and sick leave, and the Program cautions participants
against outside employment and strictly limits the timing of any outside employment. Id. at 3132. The Handbook also details the School’s sexual harassment policy and includes a section
notifying Program participants of their “[r]ecourse under the law” if such harassment happens to
them. Id. at 17-18.
The Handbook specifies various academic and clinical requirements. Id. at 19-28, 35.
The School defines a passing grade on formal examinations as 78 or above; 77 and below
constitutes a failing examination. Id. at 20. After failing an examination, a student may retake
the examination and, if she passes, avoid academic probation. Id. at 35. Failing the first retake
results in academic probation and a second retake, with the score on the second retake averaged
with that of the first retake; only a passing average score prevents dismissal from the Program,
and the participant remains on academic probation until the next scheduled exam. Id. Upon a

3

The Court similarly considers the Handbook on the same basis as the Agreement. See
note 2, supra.
3

second failed examination, regardless of a participant’s status on academic probation, the
participant must retake the examination and, in combination with the failed examination, earn an
average score of 78 or greater. Id. In order to complete the Program, a participant must, among
other things, complete the academic program of study, fulfill all clinical requirements, attain
passing examination grades “for all didactic exams / units,” and obtain and keep current required
certifications. Id. at 24.
C.

The Plaintiff’s experience. After the Plaintiff entered the Program, she began a

demanding schedule, working nine or more hours each weekday preparing and administering
anesthesiology services to surgery patients. (First Am. Compl. ¶ 12.) Superiors reviewed her
clinical work favorably. Id. ¶ 30. The Plaintiff also had academic responsibilities to fulfill in
addition to these clinical requirements. Id. ¶ 12.
The Plaintiff received vacation and sick leave benefits from the Program in accordance
with the Handbook. Id. ¶ 20. But she did not receive the “Stipend / Student Salary” as required
by the Handbook, nor did she receive health insurance benefits. Id. ¶¶ 14, 17-19. Other students
in the Program received these promised benefits. Id. ¶¶ 17-19. AANH, the School, and HSR
have not explained why the Plaintiff did not receive these benefits.
On September 4, 2009, Odeed Geismar, a CRNA employed by AANH and member of the
Program’s admissions board, sexually harassed the Plaintiff. Geismar, upon seeing the Plaintiff
exiting the hospital, said “Oh, wow,” and touched the Plaintiff inappropriately. Id. ¶¶ 31-34.
The Plaintiff told Geismar to stop, and Geismar left. Id. ¶ 34. The Plaintiff, upon returning
home, immediately told her roommate; the roommate, a fellow participant in the Program,
related a similar story about Geismar. Id. ¶ 35.
4

On September 8, 2009, the Plaintiff reported Geismar’s inappropriate behavior to the
Program’s director, Judy Thompson. Thompson replied “[w]hat do you want me to do about
this?” Id. ¶ 37. Thompson took no immediate action other than to report the matter to Dr. Philip
Noto, chair of the anesthesia department at HSR and a faculty member at the School.4 Id. ¶ 38.
(See Handbook at 1, 8.) The Plaintiff was never made aware of any further action taken by the
School, the Program, AANH, or the Hospital with respect to the incident. Id. ¶ 39.
Later in the day on September 8, 2009, Thompson informed the Plaintiff that she had
failed an examination and would have to go on academic probation. Id. ¶ 40. Upon retaking the
examination, the Plaintiff passed by a wide margin. Id. ¶ 41. Nevertheless, she remained on
academic probation in violation of the Handbook’s stated policy. Id. (See Handbook at 35.)
The Plaintiff’s next formal examination took place on October 13, 2009. (First Am.
Compl. ¶ 42.) Although the Plaintiff’s supervisor initially agreed to afford the Plaintiff time to
study prior to the examination, the supervisor reversed her position, ordered the Plaintiff to work
on an anesthesia case, and did not permit the Plaintiff to finish her clinical responsibilities with
enough time to arrive at the examination before it started. Id. ¶¶ 42-43. This delay, in
combination with logistical complications at the testing site, aggravated the Plaintiff’s test-taking
anxiety.5 Id. ¶ 43.

4

An organizational chart in the Handbook lists Dr. Noto as Medical Director of the
School and President of AANH but lists a different physician as chair of HSR’s department of
anesthesia.
5

The Plaintiff appears to have anxiety around taking formal examinations, and this
anxiety appears to affect her performance on such tests. (First Am. Compl. ¶ 29.) In September
2009, she began formal testing to determine whether she suffers from attention deficit disorder
(“ADD”). Id. ¶ 30. Although this testing determined that she does not suffer from ADD, the
Plaintiff continues to have difficulty with formal examinations. Id. ¶¶ 43, 45.
5

The Plaintiff, along with eight other students, failed this examination. Id. ¶ 44. Upon
review of the test and curving of grades, only the Plaintiff received a failing grade; the remaining
eight students passed. Id. ¶¶ 46-47. The Program does not appear to have afforded the Plaintiff
the opportunity to retake the examination as required by the Handbook for a second failed
examination. (Handbook at 35.)
The Plaintiff successfully completed several clinical assignments on October 14 and
October 15. (First Am. Compl. ¶¶ 48-49.) On the afternoon of October 15, the Plaintiff met with
Thompson, Dr. Noto, and assistant Program director Marianne Cosgrove. Id. ¶ 49. Thompson
informed the Plaintiff that the Program planned to dismiss her. Id. Dr. Noto, when pressed for
an explanation, stated “it is not working out.” Id.
D.

The present action. The Plaintiff, through counsel, pursued her administrative

remedies with the Equal Employment Opportunity Commission (“EEOC”). Her EEOC charge
named only AANH as a respondent. After receiving her notice of right to sue on January 4,
2011, id. ¶ 53, the Plaintiff brought this action on January 20, 2011, alleging unlawful sex
discrimination and retaliation in violation of 42 U.S.C. § 2000e et seq. (2006) (“Title VII”), id. ¶¶
54-57. The Plaintiff seeks a declaration that she has suffered discrimination, back pay, punitive
damages, front pay, reinstatement to the Program, and other consequential damages resulting
from her termination from the Program. Id. ¶¶ 58-68.6
E.

The proposed amendment. After HSR moved to dismiss on April 8, 2011, the

Plaintiff cross-moved for leave to amend her pleadings. The Plaintiff’s Proposed Second
6

The Plaintiff’s First Amended Complaint numbers the paragraphs in her prayer for relief
from 1-10; the Court will refer to them as though they were consecutively numbered along the
lines of the rest of the First Amended Complaint.
6

Amended Complaint added one new factual allegation, asserting that participants in the Program,
including the Plaintiff, were third-party beneficiaries of the Agreement. (Proposed Second Am.
Compl. ¶ 25.) The proposed amendment also adds two claims for breach of the Agreement
against HSR, id. ¶¶ 59-62, and additional prayers for relief based on these claims, id. ¶¶ 73-82.7
The remainder of the Proposed Second Amended Complaint is identical to the First Amended
Complaint.
II.

STANDARD

A.

Motion to dismiss. The purpose of a Rule 12(b)(6) motion to dismiss “is merely

to assess the legal feasibility of the complaint, not to assay the weight of evidence which might
be offered in support thereof.” Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc.,
748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.
1980)). In ruling on a motion under Rule 12(b)(6), the court may consider only “the facts as
asserted within the four corners of the complaint, the documents attached to the complaint as
exhibits, and any documents incorporated in the complaint by reference.” McCarthy v. Dun &
Bradstreet Corp, 482 F.3d 184, 191 (2d Cir. 2007).
The district court may dismiss a claim under Rule 12(b)(6) only if the plaintiff’s factual
allegations are not sufficient “to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
7

The Plaintiff’s Proposed Second Amended Complaint numbers the paragraphs in her
prayer for relief from 1-20; the Court will refer to them as though they were consecutively
numbered along the lines of the rest of the Proposed Second Amended Complaint.
7

For the purposes of a motion to dismiss, the court must take all of the factual allegations
in the complaint as true. However, this tenet “is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. Although detailed factual allegations are not required, a plaintiff must provide the
grounds of its entitlement to relief beyond mere “labels and conclusions.” Bell Atl., 550 U.S. at
555.
B.

Leave to amend. Leave to file amended pleadings “shall be freely given when

justice so requires.” Fed. R. Civ. P. 15(a). “Reasons for a proper denial of leave to amend
include undue delay, bad faith, futility of the amendment, and perhaps most important, the
resulting prejudice to the opposing party.” State Teachers Retirement Fund v. Fluor Corp., 654
F.2d 843, 856 (2d Cir. 1981). A proposed amendment “is futile if the proposed claim could not
withstand a [Rule 12(b)(6) motion to dismiss.]” Lucente v. IBM Corp., 310 F.3d 243, 258 (2d
Cir. 2002).
III.

MOTIONS TO DISMISS

A.

AANH and the School. AANH and the School move to dismiss, arguing that the

Plaintiff has not alleged sufficient facts to suggest that she was an employee and, therefore, has
failed to state a Title VII claim. This Court disagrees.
In order to survive a Rule 12(b)(6) motion on her Title VII claim, a plaintiff must allege
that her employer engaged in an unlawful employment practice. 42 U.S.C. § 2000e-2(a)
(emphasis added). Title VII defines “employer” as “a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year,” 42 U.S.C. § 2000e(b), and defines an
8

“employee” as “an individual employed by an employer,” 42 U.S.C. § 2000e(f).
In order to determine whether a plaintiff comes within these somewhat circular
definitions, a court first looks to whether the employer hired the plaintiff, O'Connor v. Davis, 126
F.3d 112, 115 (2d Cir.1997), by asking whether the plaintff “received direct or indirect
remuneration from the alleged employer,” Pietras v. Bd. of Fire Comm'rs, 180 F.3d 468, 473 (2d
Cir.1999) (internal quotations omitted). “[S]alary or other wages; employee benefits, such as
health insurance; vacation; sick pay; or the promise of any of the foregoing” indicate sufficient
“financial benefit” to show that the plaintiff has been “hired.” York v. Assn. of the Bar of the
City of New York, 286 F.3d 122, 126 (2d Cir. 2002) (citing O’Connor, 126 F.3d at 116)
(emphasis added). See also United States v. City of New York, 359 F.3d 83, 97 (2d Cir. 2004)
(citing Pietras, 180 F.3d at 473) (“[A] person need not receive wages in order to be considered an
employee under Title VII.”). If a plaintiff shows sufficient “financial benefit” demonstrating that
a “hire” has occurred, the court next looks to the factors identified in Community for Creative
Non-Violence v. Reid, 490 U.S. 730 (1989).8 O’Connor, 126 F.3d at 115 (citing Reid, 490 U.S.
at 751-52).
Here, the Plaintiff has pleaded that AANH and the School, as stated in the Handbook,

8

The factors are, primarily, “the hiring party's right to control the manner and means by
which the product is accomplished,” and, secondarily, “the skill required; the source of the
instrumentalities and tools; the location of the work; the duration of the relationship between the
parties; whether the hiring party has the right to assign additional projects to the hired party; the
extent of the hired party's discretion over when and how long to work; the method of payment;
the hired party's role in hiring and paying assistants; whether the work is part of the regular
business of the hiring party; whether the hiring party is in business; the provision of employee
benefits; and the tax treatment of the hired party.” O’Connor, 126 F.3d at 115 (citing Reid, 490
U.S. at 751-52).
9

promised her a salary and health insurance.9 (First Am. Compl. ¶¶ 14, 17-19.) Whether she
received either is immaterial; the promise suffices to establish a “financial benefit” indicating
that AANH “hired” her.10 See, e.g., York, 286 F.3d at 126. The Plaintiff has further pleaded that
she received vacation time and sick time. (First Am. Compl. ¶ 20.) See York, 286 F.3d at 126.
Taken together, these allegations raise the Plaintiff’s claim that AANH “hired” her above the
speculative level.
That she also bore the label “student” does not mean that AANH and the School could
not have “hired” the Plaintiff. Title VII can encompass such mixed educational and employment
relationships, including postgraduate medical training, EEOC Dec. No. 88–1, 1988 WL 192714,
at *1, 6-7 (June 27, 1988), and graduate student education, Cuddeback v. Fl. Bd. of Educ., 381
F.3d 1230, 1234–35 (11th Cir. 2004); Summa v. Hofstra Univ., No. CV 08-0361 (WDW), 2011
WL 1343058, at *10 (E.D.N.Y. April 7, 2011) (citing Bucklen v. Rensselaer Polytechnic Inst.,
166 F. Supp. 2d 721, 725 (N.D.N.Y. 2001)); Ivan v. Kent State Univ., 863 F. Supp. 581, 585 (N.
D. Ohio 1994), aff’d 92 F.3d 1185 (6th Cir. 1996) (table). This Court concludes that the Plaintiff
has pleaded facts suggesting that AANH and the School “hired” her, notwithstanding her status

9

AANH and the School have challenged these allegations. At this stage, the Court takes
them as true. Moreover, although AANH and the School are private parties, the Plaintiff’s
entitlement to a stipend finds persuasive support in the federal statute governing studentemployees of the federal government which classifies “student nurse[s],” such as the Plaintiff, as
“student-employee[s]” entitled to stipend compensation. 5 U.S.C. § 5351(2)(A).
10

AANH and the School argue that the fact that the Plaintiff never received the promised
stipend means that she cannot have been “hired” and precludes her from Title VII “employee”
status. AANH and the School accordingly appear to argue that wrongfully withholding promised
pay and benefits insulates an employer from Title VII liability. Even if binding authority did not
foreclose this argument, this Court would conclude that Title VII’s “broad remedial purpose”
could not countenance accepting it here. See, e.g., Diana v. Schlosser, 20 F. Supp. 2d 348, 354
(D. Conn. 1998).
10

as a student, sufficient to withstand the motion to dismiss.
The Plaintiff has also pleaded sufficient facts to show that the relationship between her,
AANH, and the School satisfies the Reid factors. Specifically, the Plaintiff has pleaded that
AANH and the School possessed the “right to control the manner and means” of the Plaintiff’s
performance of anesthesia services (see, e.g., First Am. Compl. ¶¶ 11-13; Handbook at 4), had
the right to assign her projects and exclusive discretion to determine her working hours (see, e.g.,
First Am. Compl. ¶¶ 11-13, 42-43), that the Plaintiff’s work was within the regular scope of
AANH’s business (see id. ¶¶ 11-13, 15, 21), and that AANH and the School promised the
Plaintiff employee benefits (id. ¶¶ 14, 17-19). AANH and the School have not argued that these
allegations do not satisfy the Reid factors. Accordingly, this Court concludes that the Plaintiff
has pleaded sufficient facts to raise her status as an “employee” protected by Title VII above the
speculative level.11 The Plaintiff may pursue her Title VII claims against AANH and the
School.12
B.

HSR. HSR also moves to dismiss, arguing (1) the Plaintiff has not alleged

sufficient facts to suggest that she was an employee instead of a student; (2) had the Plaintiff
successfully pleaded that she was an employee of AANH and the School, she did not plead
sufficient facts to show that she was an employee of HSR; and (3) the Plaintiff’s failure to name

11

To the extent that AANH and the School also move for a more definite statement, it is
denied. The First Amended Complaint is not “so vague or ambiguous that [AANH and the
School] cannot reasonably be required to frame a responsive pleading.” See Fed. R. Civ. P.
12(e).
12

Whether AANH’s and the School’s reply submission was timely filed or is properly
before the Court does not affect this result. Accordingly, in the absence of prejudice to the
Plaintiff caused by consideration of the reply submission, striking it is not warranted.
11

HSR as a respondent in her EEOC charge means that she has not exhausted her administrative
remedies and cannot proceed with her Title VII claims. This Court agrees with HSR as to its
exhaustion argument.13
Generally, a Title VII plaintiff may only sue a defendant she has already named in her
administrative charge filed with the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (limiting aggrieved
party's right to sue to “the respondent named in the charge”). The Plaintiff concedes that she,
acting through counsel, failed to name HSR in her EEOC charge. Rather, she invokes the
“identity of interests” exception to this requirement recognized in Johnson v. Palma, 931 F.2d
203 (2d Cir. 1991).
A plaintiff who has failed to name a defendant in her EEOC charge may nonetheless
pursue a Title VII claim against that defendant “where there is a clear identity of interest between
the unnamed defendant and the party named in the administrative charge.” Johnson, 931 F.2d at
209. This exception protects “parties not versed in the vagaries of Title VII and its jurisdictional
and pleading requirements . . . so as not to frustrate Title VII's remedial goals.” Id. A court
determines whether an “identity of interest” exists by looking to four factors:
1) whether the role of the unnamed party could through reasonable
effort by the complainant be ascertained at the time of the filing of
the EEOC complaint; 2) whether, under the circumstances, the
interests of a named [party] are so similar as the unnamed party's
that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party
in the EEOC proceedings; 3) whether its absence from the EEOC
proceedings resulted in actual prejudice to the interests of the
unnamed party; 4) whether the unnamed party has in some way
represented to the complainant that its relationship with the
13

Because this Court agrees with HSR as to this argument, this ruling will not address
HSR’s alternative bases for dismissal.
12

complainant is to be through the named party.
Id. at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)). A
court may also look to whether the plaintiff had a lawyer during the administrative proceedings,
Maturo v. National Graphics, Inc., 722 F. Supp. 916, 925 (D. Conn. 1989),14 and whether the
defendant had actual notice of the plaintiff’s charge, Vital v. Interfaith Med. Ctr., 168 F.3d 615,
619-620 (2d Cir. 1999) (citing Eggleston v. Chicago Journeymen Plumbers' Local Union No.
130, 657 F.2d 890, 905 (7th Cir. 1981)).
The first two Johnson factors weigh strongly in HSR’s favor. First, the Plainitff, by filing
an EEOC charge solely against AANH, evidently understood that AANH and HSR were separate
entities. Given that the Plaintiff worked long hours on HSR’s premises (see First Am. Compl. ¶¶
11-12; Agreement ¶ 1), she could easily have ascertained or surmised that HSR may have played
some role in her experience or possessed some supervisory power over AANH and the School.
Second, because HSR retains the right to dismiss Program participants (Agreement ¶ 7) and
prescribe rules for the School to enforce among Program participants, id. ¶ 9, HSR’s interests
diverged from AANH’s and the School’s. Not naming HSR in the EEOC complaint deprived the
agency of the opportunity to investigate which entity made the decision to dismiss the Plaintiff
14

District courts have split over whether pro se status before the agency is a threshold
issue precluding application of the “identity of interests” test. Compare, e.g., Anderson v. Derby
Bd. of Educ., 718 F. Supp. 2d 258, 275 (D. Conn. 2010) (holding that pro se status at the
administrative stage is required before applying “identity of interests” exception) with, e.g.,
Olvera-Morales v. Sterling Onions, Inc., 322 F. Supp. 2d 211, 216 (N.D.N.Y. 2004) (applying
“identity of interests” exception when experienced Title VII counsel failed to name respondent
before EEOC). In the absence of Second Circuit authority imposing pro se status as a threshold
requirement, this Court considers whether a plaintiff had counsel before the EEOC a nondispositive factor in determining whether to apply the “identity of interests” exception. Williams
v. Quebecor World Infiniti Graphics, Inc., 3:03cv2200 (PCD), 2007 WL 926901, at *3 (D. Conn.
Mar. 23, 2007).
13

from the Program and whether the dismissal resulted from failure to adhere to School standards,
HSR standards, or both. HSR was therefore far from “unnecessary” to the EEOC proceedings.
See Johnson, 931 F.2d at 209-10.
The second two Johnson factors weigh in the Plaintiff’s favor. HSR makes no assertion
that it suffered actual prejudice because the Plaintiff did not name it in her EEOC charge. And it
appears from an organizational chart appearing in the Handbook that the Program participants
were related to HSR only through their participation in the Program and relationship to AANH.
(Handbook at 8.)
In addition to the Johnson factors, this Court notes that the Plaintiff concedes that she had
counsel at the time of the EEOC charge, diminishing the need to protect her as a “part[y] not
versed in the vagaries of Title VII and its jurisdictional and pleading requirements.” See
Johnson, 931 F.2d at 209. Similarly, the Court notes that the Plaintiff has not pleaded that HSR
had actual notice of the EEOC charge. These additional factors weigh in HSR’s favor.
The balance of these factors therefore counsels against applying the “identity of interests”
exception here. Accordingly, because the Plaintiff did not name HSR in her EEOC charge, and
because the “identity of interests” exception does not apply, this Court may not entertain her Title
VII claims against HSR. See 42 U.S.C. § 2000e-5(f)(1). Those claims are dismissed.15
IV.

LEAVE TO AMEND

A.

Timing of amendment. As a threshold matter, the Plaintiff may seek to amend her

15

The Plaintiff also argues that dismissing her claims against HSR is improper because of
the possibility that discovery will uncover evidence permitting her to assert a viable claim based
on sex discrimination by a federally funded educational institution. See 20 U.S.C. §§ 1681-88
(“Title IX”). The Plaintiff has not pleaded a Title IX claim, so this argument fails.
14

complaint absent a showing of good cause for failure to include her additional claims and factual
allegations in earlier iterations of the complaint. Because the plaintiff promptly moved to amend
within twenty-one days of service of HSR’s motion to dismiss, allowing her to amend at this time
without a showing of good cause advances the interests of justice, see Fed. R. Civ. P. 15(a)(2),
and will “expedite determination of issues that otherwise might be raised seriatim . . . [and] . . .
advance other pretrial proceedings,” see id. advisory committee's note (2009).
HSR points to the Court’s January 20, 2011 Scheduling Order [Doc. No. 3] and the
parties’ March 30, 2011 Joint Report of Rule 26(f) Planning Meeting [Doc. No. 31] (“Joint
Report”), both demonstrating that the deadline for the plaintiff to amend her pleadings has
passed.16 HSR argues that the amendment, outside the time provided in the scheduling order, is
therefore improper without a showing of “good cause.” See Fed. R. Civ. P. 16(b)(4); Parker v.
Columbia Pictures Industries, 204 F.3d 326, 340-341 (2d Cir. 2000). Regardless of the
soundness of this general proposition, the plaintiff promptly moved for leave to amend within
twenty-one days of service of HSR’s motion to dismiss. As such, her motion was a timely
response to the motion to dismiss. In this circumstance, the Court concludes that no showing of
good cause for late amendment is required.17
In addition, given the early state of this litigation, the Court concludes that the Plaintiff’s

16

The Scheduling Order gives the deadline as March 21, 2011, and the Joint Report gives
the deadline as March 20, 2011. (Joint Report at 8.) The unexplained discrepancy is immaterial.
17

Although the plaintiff, having already amended her complaint once as of right, cannot
point to Federal Rule of Civil Procedure 15(a)(1)(B) as authorizing this amendment without
leave of the Court, the existence of such a rule allowing amendment without leave of the court in
similar circumstances counsels strongly in favor of allowing the plaintiff leave to amend in this
circumstance without a showing of good cause.
15

proposed amendment is not unduly delayed, was made in good faith, and will not prejudice
AANH, the School, and HSR. Accordingly, this Court will permit the amendment unless it is
futile.
B.

Futility of amendment. Notwithstanding the propriety of the Plaintiff’s motion for

leave to amend without a showing of good cause, the Court denies the motion because the
proposed amendment is futile.
The Plaintiff proposes to add Connecticut state law contract claims asserting HSR’s
breach of the term in the Agreement “that . . . [HSR] will not discriminate or permit
discrimination against any person . . . on the grounds of . . . sex . . . in any manner prohibited by
the laws of the United States or the State of Connecticut.” (Proposed Second Am. Compl. ¶¶ 5962; Agreement ¶ 27.) Although the Agreement only binds HSR, the School, and AANH, the
Plaintiff asserts that she may enforce it as a third-party beneficiary. (Proposed Second Am.
Compl. ¶ 25.) She also implicitly asserts that she may do so directly, without pursuing
administrative remedies first. See id. ¶¶ 59-62.
In Connecticut,18 “the only way a contract could create a direct obligation between a
promisor and a third party beneficiary would have to be . . . because the parties to the contract so
intended.” Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580–81, 833
A.2d 908 (2003). “[A] third party seeking to enforce a contract must allege and prove that the
contracting parties intended that the promisor should assume a direct obligation to the third
party.” Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981).

18

Neither HSR nor the Plaintiff challenges Connecticut law as the rule of decision for this

claim.
16

In addition, “the law subsisting at the time the contract is made governs as if expressly
referred to in the agreement . . . [and] . . . ‘[t]his principle embraces alike those which affect its
validity, construction, discharge, and enforcement.’” All Brand Importers, Inc. v. Dept. of Liquor
Control, 213 Conn. 184, 199, 567 A.2d 1156 (1989) (quoting Von Hoffman v. Quincy, 71 U.S.
(4 Wall.) 535, 550 (1866)). At the time of the Agreement, as now, neither Connecticut nor
federal law permitted an unqualified private right of action for employment discrimination; both
required exhaustion of administrative remedies first. 42 U.S.C. § 2000e-5(f)(1); Sullivan v. Bd.
of Police Comm'rs of Waterbury, 196 Conn. 208, 215, 491 A.2d 1096 (1985) (citing Conn. Gen.
Stat. Ann. § 46a-99).
Against this backdrop, this Court concludes that the Plaintiff’s Proposed Second
Amended Complaint does not sufficiently allege that HSR, the School, and AANH intended to
create a privately enforceable right to be free from employment discrimination which
circumvents statutorily-mandated exhaustion requirements. Instead, the Agreement expressly
incorporates “the laws of the United States [and] the State of Connecticut” concerning such
discrimination. (Agreement ¶ 27.) The Plaintiff has not alleged facts showing that HSR, the
School, and AANH nonetheless intended, by means of the Agreement, to permit her and her
colleagues to bypass the carefully constructed Connecticut and federal statutory and
administrative schemes surrounding employment discrimination.
Moreover, the Agreement purports to preclude application of any employment law
protections against HSR by stating that all Program participants are students of the School, not
employees or agents of HSR. (Agreement ¶ 12.) Without deciding whether this provision
actually precludes a Program participant’s suit under Title VII, or any other employment law
17

regime, against HSR, this provision does demonstrate that HSR, the School, and AANH did not
intend to use the Agreement to expand the scope of HSR’s liability for employment
discrimination occurring in the Program. See id.
It follows that the Plaintiff has not alleged sufficient facts to show that HSR, the School,
and AANH intended for the Agreement to create a promise which she could enforce directly.
Nor has the Plaintiff pointed to any authority holding that similar contract language creates an
enforceable obligation independent of statutory employment discrimination remedies.
Accordingly, the Proposed Second Amended Complaint does not state a plausible claim for relief
on a third-party beneficiary breach of contract theory, and the amendment is futile.
V.

CONCLUSION

For the foregoing reasons, HSR’s motion to dismiss [Doc. No. 32] is granted, the
Plaintiff’s cross-motion for leave to amend her pleadings [Doc. No. 36] is denied, and AANH’s
and the School’s motion to dismiss [Doc. No. 45] is denied. The Plaintiff’s motion to strike
AANH’s and the School’s reply submission [Doc. No. 52] is denied. The Clerk is directed to
close the case against HSR.
SO ORDERED.
Dated at New Haven, Connecticut, October 11 , 2011

/s/
Peter C. Dorsey, U.S. District Judge
United States District Court

18