Shlafer v. Wackenhut Corporation

Filing 26

ORDER granting in part and denying in part 14 Motion to Dismiss. See attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 12/2/11. (Hildebrand, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ROBERT SHLAFER,
Plaintiff,
v.
WACKENHUT CORPORATION,
Defendant.

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CIVIL ACTION NO.
3:11-cv-886 (VLB)
December 2, 2011

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS [Doc. #14]
Plaintiff, Robert Shlafer [“Shlafer”] initiated this action against his
employer, Defendant Wackenhut Corporation [“Wackenhut”], alleging
discrimination on the basis of age and physical disability pursuant to the
Americans with Disabilities Act, 42 U.S.C. §12101, et seq. [“ADA”], the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§621-634 [“ADEA”], and the
Connecticut Fair Employment Practices Act, Conn. Gen. Stats. 46a-60(a)(1)
[“CFEPA”]. Currently pending before the Court is a Motion to Dismiss the
Plaintiff’s Complaint in its entirety pursuant to Fed. R. Civ. Pr. 12(b)(6) for failure
to state a claim upon which relief may be granted.

I.

Factual Background
The following facts are taken from the Plaintiff’s Complaint. Shlafer, a

resident of the State of Connecticut, was employed by Defendant Wackenhut as a
receptionist/telephone operator in Stamford, Connecticut. [Dkt. #1, Compl. ¶1].
Defendant Wackenhut maintains its corporate headquarters in Palm Beach

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Gardens, Florida and conducts business as a private employer within the State of
Connecticut. [Id. at ¶2].
Plaintiff was hired by Wackenhut on May 4, 2006, at the age of 63, as a
security officer trainee, and was assigned to General Electric [“GE”] Consumer
Finance. [Dkt. #1, Compl. at ¶¶1,3]. Plaintiff was later assigned to be a lobby
receptionist and part-time phone operator, although he did not receive any
training for these positions. [Id.]. While at these positions, Thomas Fink, a
Wackenhut IT Supervisor and the supervisor of another GE site, granted Plaintiff
permission to make limited personal use of the client’s computer. [Id.]. After
several reassignments, Plaintiff was ultimately employed in November 2006 as a
full-time receptionist/phone operator. [Id.]. At that time, Plaintiff had not received
any on-the-job training as a security officer. [Id.].
In September 2008, Plaintiff informed Wackenhut that he had been
diagnosed with severe Chronic Obstructive Pulmonary Disease [“COPD”]. [Dkt.
#1, Compl. ¶4]. On November 13, 2008, Plaintiff was terminated from his
employment position for alleged improper use of a client’s computer. Specifically,
Plaintiff asserts that he was terminated for an allegedly improper email sent to his
immediate supervisor, James Purefoy. [Id. at ¶5]. Plaintiff contends that
Wackenhut was aware that other employees occasionally sent personal emails
from client computers and condoned such occasional usage. [Id.]. Plaintiff
asserts that no other employee had been reprimanded for the occasional
personal use of email from a client’s computer. [Id.]. The State of Connecticut
Department of Labor found that the email for which Plaintiff was terminated was

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not a willful threat and was not willful misconduct. [Id. at 9]. Plaintiff claims that
he was wrongfully terminated from his position because his limited use of the
client’s computer was consistent with company policy and he was given
permission to occasionally access his email for personal reasons. [Dkt. #1,
Compl. ¶6].
Instead, Plaintiff asserts that he had no disciplinary problems, performed
his job adequately, and was wrongfully terminated on the basis of his age and
physical disability in violation of the ADEA, ADA, and CFEPA. [Dkt.#1, Compl. ¶8].
Plaintiff states that following his termination he was replaced by a younger
individual. [Id. at ¶7]. This younger individual was replaced after only a short time
by a 73 year old woman. [Id.]. Additionally, Plaintiff notes that Wackenhut was
aware of his medical condition, severe COPD, prior to his termination. [Id. at ¶ 4].

II.

Standard of Review
“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). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it
‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955,
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167 L.Ed.2d 929 (2007)). “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
possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949
(internal quotation marks omitted).
The Court’s review on a motion to dismiss pursuant to Rule 12(b)(6) is
generally limited to “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). In addition, the Court may also
consider “matters of which judicial notice may be taken” and “documents either
in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in

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bringing suit.” Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.
1993). Here, Plaintiff relied on the complaint he filed with the Connecticut
Commission on Human Rights and Opportunities [“CHRO Complaint” dated
05/08/09], a copy of which is attached to Defendant’s motion to Dismiss and
supporting Memorandum as Exhibit A, in order to demonstrate that he exhausted
his administrative remedies. Therefore, although Plaintiff did not attach his CHRO
complaint to his complaint to this Court, the Court takes judicial notice of the
CHRO Complaint for purposes of its analysis of Defendant’s Motion to Dismiss.
See Anderson v. Derby Bd. of Educ., 718 F.Supp.2d 258, 273 n.33 (D.Conn. 2010).

III.

Discussion

A. Counts Three and Four: Discrimination in Violation of CFEPA
The Court notes at the outset that in his Opposition Memorandum, Plaintiff
makes no objection to, and is in fact silent on, Wackenhut’s Motion to Dismiss
Plaintiff’s CFEPA claims as time-barred. Despite this silence, the Court now
analyzes the validity of Wackenhut’s arguments regarding the timeliness of
Plaintiff’s CFEPA claims.
Conn. Gen. Stat. §46a-102 provides that “[a]ny action brought in
accordance with section 46a-100 shall be brought within two years of the date of
filing of the complaint with the commission.” Conn. Gen. Stat. §46a-102. As
another Court in this district has held, “[i]t is axiomatic that a plaintiff who fails to
follow the administrative route that the legislature has prescribed for her [CFEPA]
claim of discrimination lacks the statutory authority to pursue that claim in
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court.” Carter v. City of Hartford, No. 397-CV-832, 1998 WL 823044, at *9 (D.Conn.
Sept. 30, 1998). Within this District, failure to satisfy the exhaustion provisions of
CFEPA consistently results in dismissal for lack of subject matter jurisdiction.
See Anderson, 718 F.Supp.2d at 272.
Here, Plaintiff filed his complaint with the CHRO on May 8, 2009. [Dkt. # 15,
Ex. A]. Plaintiff filed a complaint in this Court on June 1, 2011. As the Court is
exercising supplemental jurisdiction over Plaintiff’s CFEPA claims, state law
applies for purposes of determining when an action is commenced. See Promisel
v. First American Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991) (“In
applying pendent jurisdiction, federal courts are bound to apply state substantive
law to the state claim.”) (citation omitted); see also Kotec v. Japanese
Educational Institute of N.Y., 321 F.Supp.2d 428, 431 (D.Conn. 2004) (recognizing
that a federal court sitting in supplemental jurisdiction “looks to state law, and
not the federal rules, for purposes of determining when a plaintiff commences an
action.”). Under Connecticut law, it is well settled that an action is commenced
for purposes of a statute of limitations on the date of service of the complaint
upon the defendant. See Kotec, 321 F.Supp.2d at 431 (citing Converse v. General
Motors Corp., 893 F.2d 513, 515-16 (2d Cir. 1990)).
Plaintiff’s failure to attach a certification of service to his complaint
prevents the Court from ascertaining the date upon which service of the
complaint was affected on Defendant Wackenhut. However, given that Plaintiff’s
complaint was already time barred on June 1, 2011 when it was filed with the
Court, the date upon which the Defendant was served with the complaint is

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irrelevant. By June 1, 2011, well over two years had passed since Plaintiff filed his
complaint with the CHRO on May 8, 2009. Therefore, the Court dismisses Counts
Three and Four of Plaintiff’s Complaint, his CFEPA claims, for failure to comply
with the two-year time limitation provided for in Conn. Gen. Stat. §46a-102. See
Hyde v. Beverly Hills Suites LLC, No. 3:08-cv-1374 (CFD), 2009 WL 1407133, at *1
(D.Conn. May 19, 2009)(dismissing a plaintiff’s CFEPA claim for failure to comply
with the two-year time limitation in Conn. Gen. Stat. §46a-102).
B. Count One: Discrimination in Violation of ADEA
The ADEA prohibits employers from “refusing to hire, discharging or
otherwise discriminating against an employee with regard to compensation,
terms, conditions, or privileges of employment because of age. See 29 U.S.C.
§623(a)(1). The Supreme Court has held that a plaintiff raising a disparate
treatment claim under the ADEA “must prove by a preponderance of the evidence
that age was the ‘but-for’ cause of the challenged adverse employment action,”
rather than merely a motivating factor. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167,
129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009). Although in Gross the Supreme
Court declined to definitively determine whether the burden-shifting test of
McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817 (1973), utilized in Title VII cases is
applicable in the ADEA context, it is well established that the Second Circuit
applies the McDonnell Douglas burden-shifting analysis to claims brought
pursuant to the ADEA. See Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106
(2d Cir. 2010).

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Under McDonnell Douglas, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. 411 U.S. at 802, 93 S.Ct. 1817. In
order to establish a prima facie case of discrimination, the plaintiff must show
that: “(1) he was part of the protected group; (2) he was qualified for the position;
(3) he experienced an adverse employment action; and (4) such action occurred
under circumstances giving rise to an inference of discrimination.” See Hrisinko
v. New York City Dept. of Educ., 369 Fed.Appx. 232, 235 (2d Cir. 2010). If plaintiff
satisfies this initial burden, the burden shifts to the defendant to articulate “some
legitimate, non-discriminatory reason,” for the action taken. Id. If the defendant is
able to provide such a reason, the plaintiff, in order to prevail, must show that the
employer’s proferred reason was merely a pretext for impermissible
discrimination. See Hrisinko, 369 Fed.Appx. at 235.
However, the Supreme Court in Swierkiewicz v. Sorema N.A., 534 U.S. 506,
122 S.Ct. 992 (2002) clarified that the McDonnell Douglas burden-shifting test is
an evidentiary standard, as opposed to a pleading requirement. 534 U.S. at 510.
Accordingly, the Supreme Court held that in employment discrimination cases, a
plaintiff need not present allegations sufficient to establish a prima facie case of
employment discrimination or to satisfy the burden-shifting framework of
McDonnell Douglas in order to survive a motion to dismiss under Rule 12(b)(6) for
failure to state a claim. Id. Rather, a complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief,” and
providing “the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Id. at 512 (citing Conley v. Gibson, 355 U.S. 41, 47,

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78 S.Ct. 99, 2 L.Ed.2d 80 (1975)). In order to satisfy the facial plausibility standard
in the employment discrimination context, a combination of Iqbal and
Swierkiewicz, a complaint must allege “the essential elements of an employment
discrimination claim—that plaintiff suffered discrimination on the basis of
protected status.” Mabry v. Neighborhood Defender Service, 769 F.Supp.2d 381,
392 (S.D.N.Y. 2011)(citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)).
Plaintiff must set forth factual circumstances from which discriminatory
motivation may be inferred. Id. Discriminatory motivation may be established by
allegations of preferential treatment given to similarly situated individuals, or
remarks conveying discriminatory animus. Patane, 508 F.3d at 112-13.
Here, even accepting all of the facts alleged in the complaint as true and
drawing all reasonable inferences in favor of the Plaintiff, Plaintiff’s complaint
fails to allege sufficient facts from which a reasonable trier of fact could infer that
Plaintiff was wrongfully discharged on account of his age. Plaintiff asserts that
Wackenhut’s purported justification for his termination, alleged improper use of
client equipment in utilizing a client’s computer to access his personal email, is
merely pretextual because he was given permission to occasionally access his
email, and no other employee had been reprimanded for the occasional use of
personal email. However, Plaintiff’s attempt to raise allegations of preferential
treatment cannot raise an inference of discriminatory motivation absent
allegations that the other employees who received preferential treatment by
avoiding any disciplinary action were substantially younger. See O’Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 312

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(1996)(recognizing that preferential treatment towards someone substantially
younger can be a reliable indicator of age discrimination); see also Mitchell-White
v. Northwest Airlines, Inc., 2011 WL 5023252 (2d Cir. Mar. 1, 2011) (dismissing a
claim of age discrimination brought pursuant to the ADEA for failure to state a
claim where the complaint failed to include any allegations demonstrating that
the differential treatment was actually motivated by age) (emphasis added).
Absent any allegations that those who received preferential treatment were
substantially younger, it is entirely unclear why the Plaintiff was singled out to
receive an adverse employment action. See Perry v. NYSARC, Inc., 424 Fed.Appx.
23, 25 (2d Cir. 2011)(“At the pleading stage, we consider only whether the
complaint includes factual allegations sufficient ‘to raise a right to relief above
the speculative level.’”) (quoting Twombly, 550 U.S. at 555). Fraught with
speculation, these allegations of discriminatory motivation cannot satisfy the
pleading standard laid out by the Supreme Court in Iqbal and Swierkiewicz,
requiring allegations demonstrating that the plaintiff suffered discrimination on
the basis of protected status. See Mabry, 769 F.Supp.2d at 392 (emphasis added).
In another attempt to demonstrate discriminatory intent, Plaintiff points to
the fact that following his termination he was initially replaced by a younger
individual. [Dkt. #1, Compl. ¶7]. However, Plaintiff does not include the
individual’s age. As the Supreme Court has recognized, in the age discrimination
context, a discriminatory inference “cannot be drawn from the replacement of
one worker with another worker insignificantly younger.” O’Connor, 517 U.S. at
313. Absent any indication of the younger individual’s age, any inference of

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discrimination on the basis of this allegation would be purely speculative. See
Iqbal, 129 S. Ct. at 1949 (“Where a complaint pleads facts that are ‘merely
consistent with’ a defendant's liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’ ” (quoting Twombly, 550 U.S.
at 557). Moreover, Plaintiff freely admits that this younger individual was
replaced, after only a short time, by a 73 year old woman, thereby directly
undermining any possible inference of discrimination in his termination and
replacement. [Dkt. #1, Compl. ¶7].
Therefore, Plaintiff’s claim to have been terminated on the basis of his age
in violation of the ADEA is not supported by sufficient factual allegations “to
raise a right to relief above the speculative level,” and Plaintiff’s ADEA claim must
be dismissed. Perry, 424 Fed. Appx. at 25.
C. Count Two: Discrimination in Violation of the ADA
The ADA was enacted in 1990 to eradicate widespread discrimination
against disabled individuals. See 42 U.S.C. §12191, et seq. Title I of the ADA
prohibits employers from discriminating against any “qualified individual with a
disability because of the disability of such individual in regard to job application
procedures, the hiring, advancement or discharge of employees, employee
compensation, job training, and other terms conditions, and privileges or
employment.” 42 U.S.C. §12112(a).
Claims alleging disability discrimination in violation of the ADA are also
subject to the burden-shifting analysis set forth by the Supreme Court in
McDonnell Douglas. 411 U.S. 792, 93 S.Ct. 1817. As discussed above, under the

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McDonnell Douglas burden-shifting framework, a plaintiff bears the initial burden
of establishing a prima facie case of discrimination. Id. at 802. A prima facie case
of discrimination in violation of the ADA requires proof, by a preponderance of
the evidence that: (1) the employer is subject to the ADA; (2) the plaintiffemployee was disabled within the meaning of the ADA; (3) the plaintiff-employee
was otherwise qualified to perform the essential functions of his job, with or
without reasonable accommodation; and (4) the plaintiff-employee suffered
adverse employment action because of his disability. See Giordano v. City of New
York, 274 F.3d 740, 747 (2001). If the plaintiff satisfies this initial burden, the
employer must then offer a legitimate non-discriminatory reason for the
discharge; the burden then returns to the plaintiff to produce evidence that the
proferred reason is merely a pretext. See Farina v. Branford Bd. of Educ., No. 104347-cv, 2011 WL 5607603, at *2 (2d Cir. Nov. 18, 2011) (citing McDonnell Douglas,
411 U.S. 792, 93 S.Ct. 1817).
Plaintiff alleges that Wackenhut’s proffered justification for terminating his
employment, the alleged improper use of client provided equipment, utilizing a
client’s computer to access his personal email, is merely pretextual, and
Wackenhut’s true motive was unlawful disability discrimination. To support his
contention that Wackenhut impermissibly discriminated against him on the basis
of a disability, Plaintiff points to the temporal proximity between September 2008,
when he notified Wackenhut of his diagnosis with severe COPD, and November
13, 2008 when Plaintiff was terminated.

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As other courts within the Second Circuit have held, temporal proximity is
sufficient to raise an inference of discrimination to plausibly state a claim of
employment discrimination. See Hill v. Dale Electronics Corp., 2004 WL 2937832,
at *3 (S.D.N.Y. Dec. 19, 2004) (denying a motion to dismiss plaintiff’s claim of
employment discrimination on the basis of temporal proximity creating an
inference of discrimination where plaintiff announced that she was pregnant in
early September and was terminated in late September); see also Pellegrino v.
County of Orange, 313 F.Supp.2d 303, 315 (S.D.N.Y. 2004) (holding that the
temporal proximity between plaintiff’s announcement of her pregnancy and the
process of her termination was sufficient to establish a prima facie case of
employment discrimination).

The Court finds these cases persuasive as they

are consistent with the standard for employment discrimination claims at the
pleading stage as articulated by the Second Circuit recently in Perry, instructing
that courts should consider only whether the complaint includes factual
allegations sufficient to ‘raise a right to relief above the speculative level.’ ” 424
Fed.Appx. at 25 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Therefore, given that Plaintiff has plausibly alleged a claim of disability
discrimination in violation of the ADA, the Defendant’s Motion to Dismiss Count
Two of Plaintiff’s Complaint must be denied.

IV.

Conclusion
Based upon the foregoing reasoning, Wackenhut’s motion to dismiss

Plaintiff’s Complaint is GRANTED as to Counts Three and Four as the claims are

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time barred. Wackenhut’s Motion to Dismiss Count Two of the Plaintiff’s
Complaint is DENIED as the Court holds that Plaintiff has sufficiently plead a
claim of disability discrimination in violation of the ADA. Lastly, Wackenhut’s
Motion to Dismiss Count One of Plaintiff’s Complaint is GRANTED without
prejudice. Plaintiff may, within thirty days of this Order, amend his complaint to
plead sufficient facts, as indicated by this Order, to sufficiently allege a violation
of the ADEA.

IT IS SO ORDERED.

/s/
Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: December 2, 2011.

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