Lewis v. University of Connecticut Health Center, Correctional Managed Health Care

Filing 24

ORDER granting Defendant's 15 Motion to Dismiss. See attached Memorandum of Decision. The plaintiff is directed to file an amended complaint within 14 days of this Decision. Signed by Judge Vanessa L. Bryant on 11/2/2011. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WAYNE LEWIS,
PLAINTIFF,

v.
UNIVERSITY OF CONNECTICUT,
HEALTH CENTER, CORRECTIONAL
MANAGED HEALTH CARE
DEFENDANT.

:
:
: CIVIL ACTION NO. 3:11cv821(VLB)
:
: NOVEMBER 2, 2011
:
:
:
:
:

MEMORANDUM OF DECISION GRANTING DEFENDANT’S [DKT. #15] MOTION TO
DISMISS
The Plaintiff, Wayne Lewis (“Lewis”) brings this action against his
employer Defendant University of Connecticut Health Center, Correctional
Managed Health Care (“UCHC”) alleging that Defendant UCHC is responsible for
the racially hostile work environment created by the employees of the State of
Connecticut Department of Corrections (“DOC”) with whom he worked in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”). Defendant has moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss
Plaintiff’s Title VII claim on the basis that Plaintiff has failed to plead facts which
demonstrate that UCHC should be liable for the conduct of non-employee third
parties. For the foregoing reasons, Defendant’s motion to dismiss is granted.
Factual Allegations
The following facts are taken from Plaintiff’s complaint. UCHC provides
professional health services to the inmates at the Garner Correctional Center.
[Dkt. #1, Comp. at ¶15]. Lewis, an African American male, has been employed by
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UCHC since July 24, 2004 and has held the position of Rehabilitation Therapist II
at all times relevant to the present action. [Id. at ¶¶16-17]. Lewis alleges that he
has been subjected to a continuing course of discriminatory conduct and that on
various occasions he “complained to his supervisors to no avail about the
discriminatory treatment.” [Id. at ¶¶18-19].
Lewis alleges that Defendant delayed him from being upgraded from
Rehabilitation Therapist I to Rehabilitation Therapist II within one year of his
hiring unlike similarly situated white employees. [Id. at ¶¶21-17].
Lewis further alleges that he was subjected to a racially hostile work
environment by the DOC employees with whom he worked with at the Garner
Correctional Center. In particular, he alleges that Unit Manager Marmora, a white
DOC employee, would speak to Lewis in a loud and demeaning voice and refused
to allow Lewis’s inmate workers to enter the unit and therefore interfered with his
ability to perform his job duties. [Id. at ¶¶37a-i]. He further alleges that Unit
Manager Marmora would complain about Lewis’s handwriting as well as
“monitoring his log in and out of the unit, unlike her treatment of white
personnel." [Id. at ¶¶37p]. Lewis asserts that sometime after April of 2009 he was
denied access to the unit by DOC Officer D’Allessio and Marmora because his
group session was not listed on a master programming sheet while “similarly
situated white employees have conducted group sessions on numerous
occasions without being on the master programming sheet and without being
treated in the demeaning manner in which Marmora treated the plaintiff.” [Id. at
¶¶37r-z].
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Lewis alleges that he was told by another Rehabilitation Therapist that DOC
Lieutenant Nelson informed him that inmate workers were not allowed to be in the
gym and that Lewis was instructed to do a supplemental report explaining why
his detail workers were in the gym [Id. at ¶¶37ww-xx]. Earlier in that day, Lewis
alleges that he personally witnessed the inmate detail workers assigned to Carl
Ruegg, a white DOC recreation supervisor in the gym and that Carl Ruegg was
not required to submit an incident report explaining their presence in the gym.
[Id. at ¶37yy]. Lewis further claims that he “has been treated in a grossly
disparate manner by the Defendant in the terms and conditions of his
employment when compared to its most favorable treatment of the similarly
situated white counterpart of the plaintiff, Carl Ruegg.” [Id. at ¶41].
Lewis alleges that he complained to his supervisor UCHC’s Health Services
Administrator Bush about the continuing course of racially discriminatory
treatment and that Bush “took no meaningful action to prevent the discriminatory
treatment to which the plaintiff was subjected, merely stating, ‘I know guys just
be patient it will go away’ or ‘I would strongly suggest that you guy cross your T’s
and dot your I’s during your shift.’” [Id. at ¶¶37kk-11]. Lewis alleges that Bush
“never once took a stand on these blatant discriminatory, arbitrary and
capricious practices to which the Plaintiff was subjected, and never reported the
rampant disparate treatment to which the Plaintiff and other employees brought
to his attention. [Id. at ¶37mm].

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Legal Standard
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
‘short and plain statement of the claim showing that the pleader is entitled to
relief.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While Rule 8 does not
require detailed factual allegations, “[a] pleading that offers ‘labels and
conclusions’ or ‘formulaic recitation of the elements of a cause of action will not
do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (internal quotations omitted). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’ 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. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129
S.Ct. at 1949-50). “At the second step, a court should determine whether the
‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 129 S.Ct. at 1950). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer

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possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949
(internal quotation marks omitted).
Analysis
First, Defendant moves to dismiss Plaintiff’s claim regarding his delayed
upgrade to the Rehabilitation Specialist II position as time-barred under Title VII.
[Dkt. #15, Def. Mem. at 1]. In response, Plaintiff states that his complaint does not
assert “any cause of action based solely on the denial to promote plaintiff in a
timely fashion to the position of Rehabilitation Specialist II,” but rather his sole
claim is that he was subjected to a hostile work environment. [Dkt. # 19, Pl. Mem.
at 1-2].

Accordingly, the Court need not address Defendant’s arguments

regarding Lewis’s untimely promotion to Rehabilitation Specialist II as Plaintiff
has indicated that he is not asserting a separate cause of action based on such
conduct.
Second, Defendant moves to dismiss Plaintiff’s hostile work environment
claim on the basis that the conduct which allegedly created the hostile work
environment was committed by DOC employees and argues that UCHC should
not be held liable for the conduct of non-employee third parties. See [Dkt. #15,
Def. Mem. at 5-6]. Plaintiff concedes that the conduct which forms the basis for
his hostile work environment claim was committed by DOC employees, but
argues that UCHC can and should be held liable for the conduct of non-employee
third parties. See [Dkt. #19, Pl. Mem. at 3].

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The Second Circuit has not yet specifically addressed whether an employer
can be liable for the harassing conduct of non-employees but has stated in dicta
that “[t]hough we need not decide the precise contours of the duty, if any, that
employers owe to employees who are subjected to harassment by outsiders such
as customers, such a duty can be no greater than that owed with respect to coworker harassment.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766-67 (2d
Cir. 1993), abrogated in part on other grounds by, National R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 122 (2002).  
Therefore, other district courts in this circuit have followed the standard for
co-worker liability set forth in Quinn in analyzing whether an employer may be
held liable for the conduct of a non-employee which “provides that an employer
may be held liable for the conduct of a co-worker if there is no reasonable avenue
for complaint or the employer knew of conduct and did nothing about it.” See
e.g., Andersen v. Rochester City School Dist., No.09-cv-6259, 2011 WL 1458068, at
*4 (W.D.N.Y. April 15, 2011) (citing Quinn, 159 F.3d at 766-67 (2d Cir. 1993));
Bronner v. Catholic Charities of Roman Catholic Diocese of Syracuse, Inc.,
No.3:08-cv-0015, 2010 WL 981959, at *14 (N.D.N.Y. Mar. 15, 2010) (“Courts have
held that an employer may be found liable for the harassing conduct of nonemployees, including inmates and residents in youth centers, if the employer
knew or reasonably should have known of the harassment yet failed to take
appropriate corrective action”) (collecting cases); Heskin v. Insite Advertising,
Inc., No.03CIV.2598, 2005 WL 407646, at *21 (S.D.N.Y. Feb. 22, 2005) (finding that
employer could be held liable for the sexual harassment committed by a non6 

employee if the employer encouraged, condoned or approved of the sexual
harassment); Kudatzky v. Galbreath Co., Np.96CIV.2693, 1997 WL598586, at *4
(S.D.N.Y. Sept. 23, 1997) (“it is increasingly recognized that employers may be
liable for harassment committed by nonemployees in the workplace where the
employer knows of the harassment but fails to act”).
The Second Circuit in Quinn relied on the Equal Employment Opportunity
Commission (“EEOC”) guidelines which state “[a]n employer may also be
responsible for the acts of non-employees, with respect to sexual harassment in
the workplace, where the employer (or its agents or supervisory employees)
knows or should have known of the conduct and fails to take immediate or
appropriate corrective action.” 29 C.F.R. §1604.11(e). In determining whether to
impose liability for non-employee conduct the EEOC instructs that “the extent of
the employer's control and any other legal responsibility which the employer may
have with respect to the conduct of such non-employees.” Id.

Courts have

referred to the EEOC guidelines as a source of persuasive guidance. Kudatzky,
1997 WL598586 at *4 (“While these Guidelines are not controlling, they represent
a body of experience to which the courts may resort for guidance”) (citing
General Elec. Co. v. Gilbert, 42 U.S. 125, 141-42 (1976)).
Therefore as the Second Circuit in Quinn suggested and the other district
court cases interpreting Quinn have held, an employer could be liable for the
conduct of a non-employee in such circumstances where the employer knew of
the non-employee conduct, did nothing about it and the employer exerted control
or had other legal responsibility over the non-employee. See Viruet v. Citizen
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Advice Bureau, No.01CIV.4594, 2002 WL 1880731, at *17 (S.D.N.Y. Aug. 15, 2002)
(finding that employer could not be liable for conduct of non-employee client as
the plaintiff failed to proffer any evidence that employer knew about client’s sexbased derogatory comments towards plaintiff and that employer “could be
expected to have little or no control over clients’ language and behavior”);
Kudatzky, 1997 WL 598586 at *5 (finding that employer could be liable for his
client’s harassing conduct since “much like a casino owner or the employer of an
independent contractor,” the employer could have deterred his client and his
client’s alleged sexual harassment of plaintiff).
Further, other circuits that have addressed the question of employer
liability with respect to non-employees have also followed the EEOC guidelines in
holding that an employer may be responsible for acts of a non-employee where
the employer knows or should have known of the conduct and failed to take
immediate and appropriate corrective action. See e.g., Lockard v. Pizza Hut, Inc.,
162 F.3d 1062, 1073-74 (10th Cir. 1998) (“We agree with our sister circuits [the
First, Eighth, and Ninth Circuits] that an employer may be found liable for the
harassing conduct of its customers … An employer who condones or tolerates
the creation of such an environment should be held liable regardless of whether
the environment was created by a co-employee or a nonemployee, since the
employer ultimately controls the conditions of the work environment.”);
Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997) (“[A]n
employer may be held liable for sexual harassment on the part of a private
individual, such as the casino patron, where the employer either ratifies or
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acquiesces in the harassment by not taking immediate and/or corrective action
when it knew or should have known of the conduct.”); Crist v. Focus Homes, Inc.,
122 F.3d 1107, 1111-12 (8th Cir. 1997) (holding that employer, a for-profit
residential home for individuals with developmental disabilities, could be liable
for the sexual assault committed by a resident since the employer “clearly
controlled the environment in which [the resident] resided, and it had the ability
to alter those conditions to a substantial degree”); Rodriguez-Hernandez v.
Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998) (First Circuit upheld jury’s verdict
for plaintiff on the basis that “employers can be held liable for a customer's
unwanted sexual advances, if the employer ratifies or acquiesces in the
customer's demands.”).
The Second Circuit’s decision in Quinn, the other district court and circuit
court cases analyzing non-employee liability, and the EEOC guidelines concern
sexual harassment as opposed to a race-based hostile environment claim.
However, courts have recognized that “the same general standards apply to both
race-based and sex-based hostile environment claims.”

Lugo v. Shinseki,

No.06CIV.13187, 2010 WL 1993065, at *9 n.10 (S.D.N.Y. May 19, 2010) (citing
Torres v. Pisano, 116 F.3d 624, 620 (2d Cir. 1997)). The Court sees no reasons
why these cases and the EEOC’s guidelines concerning sexual harassment
would not also be applicable to a race-based hostile work environment claim.
Lewis argues that the allegations in the complaint plausibly state a claim
that his employer should be liable for the conduct of non-employees since he
alleged that he repeatedly complained about the DOC employees’ harassing
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conduct to his UCHC supervisor Bush and that his supervisor did nothing about
it. However, Defendant contends that Lewis has failed to plead sufficient facts to
state a plausible claim since Plaintiff has not pled any facts alleging that UCHC
exerted any control over DOC such that it would be appropriate to subject UCHC
to liability for the acts of DOC employees.

The Second Circuit’s decision in

Quinn, the other district court and circuit court cases analyzing non-employee
liability and the EEOC guidelines clearly contemplate that an employer should
only be held liable where the employer exerts some control over the nonemployee conduct or where the employer may have some other legal
responsibility over the non-employee conduct. Since Lewis has failed to plead
any facts regarding the nature of the relationship between the UCHC and the DOC
which would suggest that UCHC had the authority or the ability to take
appropriate corrective action with respect to Lewis’s complaints regarding DOC
employees’ harassing conduct, the Court finds that Lewis has failed to plausibly
state a claim for hostile work environment against UCHC.
Further, the Court notes that the district court cases in this circuit and the
other circuit court cases analyzing non-employee liability typically involve the
conduct of the employer’s clients or customers. Here, Lewis has not alleged any
facts specifying the nature of the relationship between UCHC and the DOC and
therefore the Court is unable to analyze whether UCHC and DOC’s relationship
was similar to the relationship of a customer or client which district courts in this
circuit and other circuit courts have held met the threshold for extending
employer liability to non-employees.

Since Lewis has alleged no facts in the
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complaint regarding whether UCHC exerts any control over DOC employees, the
Court finds that the allegations in the complaint do not contain sufficient factual
content to allow the court to draw the reasonable inference that UCHC should be
liable for the conduct of DOC employees. The Court recognizes that both UCHC
and DOC are agencies within the administrative branch of state government and
thus ultimately subject to the dictates and influence of the Governor: however,
each is a separate and distinct agency of state government independent from one
another, the Plaintiff has failed to establish that UCHC had any more than the
power of moral suasion over DOC. In the absence of any facts regarding the
relationship between UCHC and the DOC, Lewis has failed to plausibly state a
claim that UCHC should be liable for the conduct of non-employee third parties.
Accordingly, Defendant’s motion to dismiss is granted as to Plaintiff’s hostile
work environment claim without prejudice to the filing of an amended complaint
that contains sufficient factual pleadings which would support an inference that
UCHC exerted control or had any other legal responsibility over the conduct of
DOC employees.
Conclusion
Based upon the above reasoning, the Defendant’s [Dkt. #15] motion to
dismiss is GRANTED. Plaintiff is directed to file an amended complaint within
fourteen (14) days of this Decision.
IT IS SO ORDERED.

_________/s/___________
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Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: November 2, 2011

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