Wanamaker v. Westport Board of Education et al

Filing 40

ORDER granting in part and denying in part 14 Motion to Dismiss. See attached memorandum of decision. The Court dismisses Plaintiff's ADA and CFEPA Section 46a-60(a)(1) claims without prejudice to leave to amend those claims within 30 days of this Order. The Court further dismisses Plaintiff's breach of contract claim with prejudice and dismisses the claims against Defendant Landon as barred by qualified immunity. The Clerk is therefore directed to terminate Defendant Landon as a defendant in this action. The rest of Plaintiff's claims remain extant for summary judgment and trial. Signed by Judge Vanessa L. Bryant on 9/25/2012. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SALLY J. WANAMAKER,
PLAINTIFF,
v.

WESTPORT BOARD OF EDUCATION, and
ELLIOT LANDON, Individually,
DEFENDANTS.

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CIVIL ACTION NO.
3:11-cv-1791 (VLB)

SEPTEMBER 25, 2012

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS [Dkt. #14]

I. Introduction
Plaintiff, Sally Wanamaker (“Wanamaker”), brings this action against the
Westport Board of Education (“Board”) and Superintendent Elliot Landon
individually asserting several violations of federal and state employment laws
relating to the circumstances of her return to her position as a computer teacher
in the Westport public school system following a difficult pregnancy. Currently
pending before the Court is a motion to dismiss filed by both Defendants seeking
to dismiss Plaintiff’s Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(1)
and 12(b)(6).
II.

Factual Background

Plaintiff was employed by the Westport Public Schools from January 2000
until April 27, 2011. [Dkt #1, Complaint ¶ 2]. She began to work for Westport
Public Schools as an unpaid intern in December 1998, became a full-time teacher
in January 2000, obtained tenure in 2004, and served as a “Computer Teacher in
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the Green Farms School from September 2002 through June 2009.” Id. at ¶ 11.
Plaintiff contends that she was an “exemplary performer during her tenure,”
noting that she “received raises and favorable reviews every year, and was never
subject to any negative personnel action.” Id. at ¶¶ 2, 12.
In April 2009, while on maternity leave under the Family Medical Leave Act
(“FMLA”), Plaintiff gave birth to her daughter. Id. at ¶ 13. “Wanamaker incurred a
spinal injury and disability, transverse myelitis, resulting from the birth of her
daughter. In addition, her daughter was born in April 2009 with a serious,
congenital heart defect which would require future surgery to repair.” Id.
Article XIX(A) of the contract between Westport and the Westport
Education Association pertains to maternity leave and provides that:
An employee requiring leave of absence because of
disability resulting from pregnancy shall be granted
necessary leave. Such leave shall be granted from
accumulated sick leave as set forth in article XVII of this
Agreement, in conformity with Section 46a-60 of the
Connecticut General Statutes.
[Dkt. #1, Complaint ¶ 34].
In July 2009, before the 2009-2010 school year began, Plaintiff’s doctor,
Peter McAllister recommended that she take a 30 to 60 day leave at the start of
the school year “depending upon how she felt in August.” Id. at ¶ 14. Plaintiff
spoke with Margaret Breines “of Westport’s human resources department” about
the possibility of a brief medical leave at the beginning of the school year and Ms.
Breines “stated that her position would be held for her if she needed to take a
health-related medical leave.” Id. at 15. On July 24, 2009, Dr. McAllister sent a
letter to John Bayers, Principal of the Green’s Farm school, notifying him that
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Plaintiff might not be able to return to work at the beginning of the school year,
and might require 30 to 60 days of leave. Id. at 16. Principal Bayers told Plaintiff
that the substitute teacher who had been trained to cover her computer teaching
position during her maternity leave would continue to cover her responsibilities
during Plaintiff’s 30 to 60 days of leave. Id. at ¶ 17.
However, Plaintiff alleges that on August 10, 2010, Principal Bayers, “at the
direction of defendant Landon, informed Wanamaker that he had decided to
replace her permanently.” [Dkt. #1, Complaint ¶ 18]. Plaintiff contends that the
individual selected to replace her, Nicole Fieschel, “did not suffer from any
physical disability, did not have any children, and was not perceived as needing
intermittent time off in the future relating to a disability.” Id. at ¶ 19. Plaintiff
further contends that Fieschel “was also less qualified in terms of computer
teaching experience,” thus, “[a] non-tenured teacher whose position had been
made redundant due to enrollment, Sarah Stefans, was thereupon moved into
Fieschel’s position. Stefans also did not suffer from any disability that might
require future medical leave.” Id. at ¶19.
In sum, Plaintiff asserts that she was “selected out of her position due to
her disability, perceived need to take medical leave in the future, and exercise of
FMLA rights.” Id. at ¶¶19-20.
Principal Bayers informed Plaintiff that “when she was ready to return, she
could come back as a substitute classroom teacher.” Id. at ¶ 21. Plaintiff asserts
that a substitute classroom teacher position “was not equivalent to the computer
teacher position she had held since 2001, and was in reality a demotion.” [Dkt. #1,

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Complaint ¶ 21]. Plaintiff alleges that she informed Principal Bayers that he was
asking her to choose between her job and medical leave. Id. at ¶ 22. Plaintiff
further informed Principal Bayers that “if her employment was indeed at stake
she would return by the beginning of the school year, and at most would need a
brief medical leave, or some reasonable accommodation such as teaching from a
chair instead of standing.” Id.
On August 16, 2009, Plaintiff spoke with Edward Huydic, the former
president of the Westport Education Association union. [Dkt #1, Complaint ¶ 23].
During the conversation, Huydic inquired about the health of Plaintiff’s daughter
and whether her heart condition would require surgery. Id. Plaintiff notes that she
“had never shared this personal information with Huydic before this phone call.”
Id. at ¶¶ 23-24. Plaintiff alleges that Huydic told her that Defendant Landon had
brought up the subject during an earlier conversation and stated that this
situation “was one of the reasons why her computer teacher position had been
assigned to another teacher.” Id. at ¶ 25. Plaintiff further alleges that Huydic
informed her that Landon “expressed concern that Wanamaker’s disability, and
the future heart surgery on her infant daughter, might result in future absences.”
Id.
Plaintiff alleges that prior to her maternity leave in February 2009,
Defendant Landon “displayed hostility and illegal animus toward teacher
absences, regardless of whether the absences were health-related or otherwise
legitimate.” [Dkt. #1, Complaint ¶ 26]. In particular, Landon distributed a letter to
the union regarding teacher absences, causing “what Hyudic described as a

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‘fury’ among Westport teachers.” Id. Plaintiff contends that Huydic asked Landon
to apologize to the teachers in the union.” Id. at ¶ 27.
Plaintiff alleges that Defendant Landon continued to communicate with
members of the union regarding teacher absences. Id. at ¶29. In particular,
Plaintiff alleges that on September 19, 2008, Landon sent an email expressing
“regret” over not distinguishing between absences related to “in-district
professional activities” and absences related to “occasional illness, various
personal and other non-continuous absence-related reasons,” thus implying that
“the latter category were somehow problem or illegitimate absences, whereas indistrict professional activity absences were acceptable.” Id. at ¶ 30.
On August 17, 2009, Plaintiff alleges that Principal Bayers asked her to
clean out her classroom on and placed her on leave. [Dkt #1, Complaint ¶ 31].
Plaintiff retained counsel and sought reinstatement to the computer teacher
position in May 2010. Plaintiff alleges that this request was again denied as the
Defendant Board instead offered her a full-time classroom teacher position,
which Plaintiff contends “was (i) not equivalent to her computer teacher position
and (ii) was contrary to her doctor’s recommendation that she not be placed in a
position other than the computer teacher position due to her disability.” Id. at ¶
32.
On August 16, 2010, the Defendant Board gave Plaintiff notice of her
proposed termination. [Dkt #1, Complaint ¶ 37]. On September 1, 2010, Plaintiff

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requested a “termination hearing pursuant to Conn. Gen. Stat. § 10-151.”1 Id. A
termination hearing was held “in late 2010 and early 2011.” Id. Finally, on April 27,
2011, the Defendant Board terminated Wanamaker’s employment.” Id. at ¶38.
Plaintiff alleges that the Defendant Board terminated her employment “on the
false grounds of ‘other due and sufficient cause.” Id. Plaintiff further alleges that
the Defendant Board based its decision “upon the recommendation of an
arbitration panel which was not binding and [ . . . ] expressly declined to follow or
apply applicable law, instead deferring to administrative agencies and the
courts.” Id.
III.

Standards 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 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.

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This statute, in particular subsection (d), provides the reasons for which a
tenured teacher may be terminated and provides that “[p]rior to terminating a
contract, the superintendent shall give the teacher concerned a written notice
that termination of such teacher's contract is under consideration and, upon
written request filed by such teacher with the superintendent, within seven days
after receipt of such notice, shall within the next succeeding seven days give
such teacher a statement in writing of the reasons therefor.” Conn. Gen. Stat. §
10-151(d).
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Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 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

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in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.
1993). Here, both parties rely upon the May 6, 2009 letter responding to Plaintiff’s
request for Family Medical Leave, attached to the Motion to Dismiss as Exhibit B.
[Dkt #15, Def.’s Mot. To Dismiss, Exhibit B]. Therefore, where Plaintiff had
knowledge of the letter and both parties rely on the letter, the Court will consider
the letter for the purposes of analyzing the pending motion to dismiss. See
Anderson v. Derby Bd. Of Educ., 718 F. Supp. 2d 258, 273 n.33 (D. Conn. 2010).
Lastly, in deciding a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) the Court “may resolve disputed factual issues by
reference to evidence outside the pleadings, including affidavits.” State
Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007).
IV. Discussion
A. FMLA Claims
Plaintiff has raised two distinct claims pursuant to the FMLA, including a
claim of interference and a claim of retaliation. Plaintiff has raised these FMLA
claims against both the Defendant Board of Education, and Defendant Landon in
his individual capacity. Defendant Landon seeks to dismiss Plaintiff’s FMLA claim
against him, contending that the FMLA does not allow for the individual liability of
public employees as “employers,” and, alternatively, even if such liability is
cognizable, Defendant Landon contends that he is entitled to qualified immunity.
1. Individual FMLA liability

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The FMLA defines an “employer” as “any person engaged in commerce or
in any industry or activity affecting commerce who employs 50 or more
employees for each working day during each of 20 or more calendar workweeks
in the current or preceding calendar year.” 29 U.S.C. §2611(4)(A)(i). The statute
includes in the general definition of “employer” “any person who acts, directly or
indirectly, in the interest of an employer to any of the employees of such
employer.” 29 U.S.C. §2611(4)(A)(ii)(I). The statute further provides that the
general definition of an employer includes “any ‘public agency’’, as defined in
section 203(x) of this title.” 29 U.S.C. §2611(4)(A)(iii). The statute thus, “explicitly
provides for individual defendant liability” in (A)(ii)(I). Smith v. Westchester
County, 769 F. Supp. 2d 448, 473 (S.D.N.Y 2011).
However, circuit courts have split on the question of whether the statute is
recursive to provide for individual liability for supervisory personnel of public
agencies by allowing 4(A)(ii)(I) to apply to 4(A)(iii). Circuit courts are divided as to
whether employee supervisors at public agencies may be held individually liable
as “employers.” Compare Haybarger v. Lawrence County Adult Probation and
Parole, 667 F.3d 408, 413-17 (3d Cir. 2012), Modica v. Taylor, 465 F.3d 174, 183-87
(5th Cir. 2006), and Darby v. Bratch, 287 F.3d 673, 680-81 (8th Cir. 2002) (allowing
for liability for supervisory personnel of public agencies), with Mitchell v.
Chapman, 343 F.3d 811, 832 (6th Cir. 2003), and Wascura v. Carver, 169 F.3d 683,
687 (11th Cir. 1999) (not allowing for liability).
This split pervades among district courts as well, although a majority of
district courts appear to have allowed for supervisory personnel of public

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agencies to be held individually liable for violations of the FMLA. Compare Smith,
769 F. Supp. 2d at 475, Cantley v. Simmons, 179 F. Supp. 2d 654, 656-58 (S.D.W.
Va. 2002), Kilvitis v. County of Luzerne, 52 F. Supp. 2d 403, 412-13 (M.D. Pa. 1999)
(collecting cases), and Morrow v. Putnam, 142 F. Supp. 2d 1271, 1272-72 (D. Nev.
2001) (finding that “this statute becomes recursive” when applied to supervisory
personnel of public agencies), with Keene v. Rinaldi, 127 F. Supp. 2d 770, 777-79
(M.D.N.C. 2000).
Thus, it appears that a majority of both circuit and district courts allow for
such liability. Although this Court is not aware of any Second Circuit precedent
on point, the Court notes that another district court within the Second Circuit has
held, as a matter of first impression, that “Congress did not specifically exclude
public employees from FMLA liability, and [so] the Court will not do so here.”
Smith, 769 F. Supp. 2d at 475. Thus the only authority addressing this particular
question of statutory interpretation within the Second Circuit interpreted the
FMLA to allow individual liability for supervisors at public agencies. Id. at 475-76.
However, “a district court decision does not ‘clearly establish’ the law even
of its own circuit, much less that of other circuits. Although district judges within
a particular circuit will frequently find each other’s opinions persuasive, they
remain free to disagree.” Hawkins v. Steingut, 829 F.2d 317, 321 (2d Cir. 1987).
Thus, this Court will conduct an independent analysis of this question of
statutory interpretation.
“When interpreting the meaning of a statute, the court looks first to the
language of the statute itself.” Morrow, 142 F. Supp. 2d at 1272 (citing United

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States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)). The literal meaning of
the words controls unless such a reading “would ‘compel an odd result’” or
where there is clear evidence “that Congress did not intend words of common
meaning to have their literal effect.” Public Citizen v. U.S. Dept. of Justice, 491
U.S. 440, 454 (1989) (citations omitted). No such concerns exist here, so the plain
text must control.
This Court agrees that “[t]he most straight forward reading of the text
compels the conclusion that a public employee may be held individually liable
under the FMLA.” Modica, 465 F.3d at 186. See Smith, 769 F. Supp. 2d at 473-74
(“a fair reading of the plan language of the statute does not exclude public
employees from individual liability.”); Rasic v. City of Northlake, 563 F. Supp. 2d
885, 892 (N.D. Ill. 2008) (Congress “plainly has chosen to subject individually
employees who ‘act in the interest of the employer’ with respect to employees to
personal liability. We find no evidence in the statutory language or structure that
Congress meant to do so only for private, and not public, employees.”)
As the Modica, Smith, and Rasic courts concluded, the text of 29 U.S.C. §
2611(4)(A) is quite clear. 4(A)(iii) provides that “[t]he term ‘employer’ . . . includes
. . . any ‘public agency’.” 29 U.S.C. § 2611(4)(A)(iii). Therefore, assuming it
otherwise qualifies, an agency such as a Board of Education is an employer
under the FMLA. 4(A)(ii)(I) elaborates on the meaning of the term employer by
including in the definition of “employer” those individuals who operate on behalf
of the employer, stating that “[t]he term ‘employer’ . . . includes any person who
acts, directly or indirectly, in the interest of such employer to any of the

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employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). Thus, “this statute
becomes recursive when applied to supervisory personnel, because the
definition of employer refers back to the word employer itself” and 4(A)(ii)(I)
supervisors who work for 4(A)(iii) public agency employers are clearly intended
to be treated as employers themselves. Morrow, 142 F. Supp. 2d at 1272-73.
The statute, thus, clearly dictates that (1) public agencies are employers
and (2) certain persons who act in the interest of “employers” can qualify as
employers themselves. Therefore, it is apparent that the Board, a public agency,
constitutes an employer under 4(A)(iii), and Defendant Landon, who works “in the
interest of” the Board, must also be treated as an employer. 29 U.S.C. §
2611(4)(A)(ii)(I).
In so holding, this Court acknowledges, but finds unpersuasive, the
reasoning of other circuits which this Court finds to be in contravention of the
plain language of the statute. See, e.g., Mitchell, 343 F.3d at 830 (finding that the
separation of public agencies from supervisory personnel in “distinctly
enumerated clauses compels an interpretation that treats each clause in an
independent manner.”). This Court can find no evidence that Congress intended
for the statute to be interpreted according to anything other than its plain
language or that such a reading would yield an odd result. Public Citizen, 491 U.S.
at 454. Therefore, this Court finds that the FMLA’s definition of “employer” may
include employees of public agencies who act “directly or indirectly, in the
interest of an employer to any of the employees of such employer.” 29 U.S.C.
§26114(A)(ii)(I).

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2. Qualified immunity
Defendants argue that even if the Court finds that statutory liability may
extend to Defendant Landon, Defendant Landon is entitled to qualified immunity.
Plaintiff rejects this assertion, contending that this argument is premature where
discovery has not yet been completed.
3.

Qualified immunity as to Individual FMLA Liability

The goal of qualified immunity is to “avoid excessive disruption of
government and permit the resolution of many insubstantial claims on summary
judgment.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity
exists to ensure that officials are not inhibited in the performance of their duties
by fear of personal liability. Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). As
the Supreme Court has made clear, “the driving force behind the creation of the
qualified immunity doctrine was a desire to ensure that insubstantial claims
against government officials will be resolved prior to discovery.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted); see also Iqbal at
658-86 (“The basic thrust of the qualified-immunity doctrine is to free officials
from the concerns of litigation, including ‘avoidance of disruptive discovery.’”).
Thus, the qualified immunity doctrine functions to “avoid ‘subject[ing]
government officials either to the costs of trial or to the burdens of braodreaching discovery’ in cases where the legal norms the officials are alleged to
have violated were not clearly established at the time.” Mitchell v. Forsyth, 472
U.S. 511, 526 (1985) (quoting Harlow, 457 U.S. at 817-18). The Supreme Court has
“repeatedly stressed the importance of resolving immunity questions at the
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earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991).
“Unless the plaintiff’s allegations state a claim of violation of clearly established
law, a defendant pleading qualified immunity is entitled to dismissal before the
commencement of discovery.” Mitchell v. Forsyth, 472 U.S. at 526.
This bar on reaching discovery where qualified immunity exists is
absolute and cannot be avoided with the promise of less-costly or limited
discovery. Iqbal at 685-86 (The “promise” of “minimally intrusive discovery
. . . provides especially cold comfort in this pleading context, where we are
impelled to give real content to the concept of qualified immunity for highlevel officials who must be neither deterred nor detracted from the
vigorous performance of their duties.”); accord Wicks v. Miss State Emp’t
Serv., 41 F.3d 991, 996 (5th Cir. 1995) (“any discovery . . . even that limited
in scope, is improper and immediately appealable as a denial of the
benefits of the qualified immunity defense.”).
Given the clear direction from the Supreme Court regarding the
purposes of the doctrine of qualified immunity and its application, it is
indisputably appropriate to review Defendant Landon’s claim of qualified
immunity at the motion to dismiss stage.
When reviewing a claim of qualified immunity, a court must consider
“whether the facts that the plaintiff has alleged(See Fed. Rules Civ. Porc. 12
(b)(b)(6), (c)) or shown (see Rule 50, 56) make out a violation of a constitutional
[or statutory] right,” and “whether the right at issue was ‘clearly established’ at
the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 232.

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Although previously the Supreme Court prescribed a mandatory two-step
analysis, considering first the constitutional violation prong and then the clearly
established prong, the Court has since recognized that this rigid procedure
“sometimes results in a substantial expenditure of scarce judicial resources on
difficult questions that have no effect on the outcome of the case,” as “[t]here are
cases in which it is plain that a constitutional right is not established but far from
obvious whether in fact there is a constitutional right.” Pearson, 555 U.S. at 23637. Thus, the Supreme Court has provided district courts with the discretion to
decide the order in which the two prongs of the qualified immunity analysis are
applied. Id. at 243.
In providing the lower courts with the discretion to determine the order of
qualified immunity analysis to be applied to a given case, the Supreme Court
explicitly acknowledged that “there will be cases in which a court will rather
quickly and easily decide that there was no violation of clearly established law
before turning to the more difficult question of whether the relevant facts make
out a constitutional question at all.” Id. at 239. As previously discussed, the
question of public agency employee liability under the FMLA remains unresolved
by the Second Circuit. Thus, this case presents such a situation, where the
“clearly established” prong is more easily resolved than the constitutional
violation prong. Accordingly, the Court will first consider the “clearly
established” prong.
Qualified immunity “protects government officials from liability where the
officials’ conduct was not in violation of a ‘clearly established’ constitutional

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right.” Sudler v. City of New York, 11-1198-cv (L), 11-1216-cv (con), 2012 WL
3186373, at *10 (2d Cir. Aug. 7, 2012). “If the conduct did not violate a clearly
established constitutional right, or if it was objectively reasonable for the [official]
to believe that his conduct did not violate such a right, then the [official] is
protected by qualified immunity.” Id. (quoting Doninger v. Niehoff, 642 F.3d 334,
345 (2d Cir. 2011)). “Qualified immunity thus shields government officials from
liability when they make ‘reasonable mistakes’ about the legality of their actions,
and ‘applies regardless of whether the government official’s error is a mistake of
law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id.
(internal citations omitted) (quoting Pearson, 555 U.S. at 231).
As noted earlier, “[a] district court decision does not clearly establish the
law even of its own circuit, much less that of other circuits. Although district
judges within a particular circuit will frequently find each other’s opinions
persuasive, they remain free to disagree.” Hawkins, 829 F.2d at 321. Neither the
Supreme Court nor the Second Circuit has answered the question of individual
liability of public agency employees for violations of the FMLA. Thus, where only
one other district court within the Second Circuit previously addressed this
question of liability, predicated upon a complicated question of statutory
interpretation, it can hardly be said that such this liability was clearly established.
Accordingly, Defendant Landon is entitled to qualified immunity for any
purported violations of Plaintiff’s rights under the FMLA. See Modica, 465 F.3d at
183-88 (holding that although individual employees of public agencies may be

16 

held liable under the FMLA, this right has not yet been clearly established and
thus the qualified immunity applies to preclude liability).
Accordingly, Defendants’ motion to dismiss Plaintiff’s FMLA claims against
Defendant Landon on qualified immunity grounds is hereby granted.

4.

FMLA Interference Claim

The FMLA “creates a private right of action to seek both equitable relief
and money damages against any employer . . . in any Federal or State court of
competent jurisdiction should that employer interfere with, restrain or deny the
exercise of FMLA rights.” Nevada Dept. of Human Resources v. Hibbs, 538 U.S.
721, 724-25 (2003) (internal quotations and citations omitted).
“The FMLA gives eligible employees an ‘entitlement’ to twelve workweeks
per year of unpaid leave ‘[b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position of such employee.’”
Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 174 (2d Cir. 2006) (quoting 29
U.S.C. § 2612(a)(1)(D)). After this leave “the employee has the right to return to
the position [s]he held before the leave or its equivalent”, Id., with equivalence
determined based on “employment benefits, pay, and other terms and conditions
of employment.” 29 U.S.C. § 2614(a)(1). However, if you are unable to perform an
“essential function of the position because of a physical or mental condition,
including the continuation of a serious health condition,” you have no right to
reinstatement. 29 C.F.R. § 825.216(c).

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“It shall be unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter.
29 U.S.C. § 2615(a)(1). Additionally, it is unlawful to discriminate against someone
“for opposing any practice made unlawful by this subchapter,” filing an FMLA
charge, or giving information in an FMLA proceeding. 29 U.S.C. § 2615(a)(2); 29
U.S.C. § 2615 (b).
The Second Circuit has recognized two distinct causes of action under the
FMLA: “interference” and “retaliation.” Potenza v. City of New York, 365 F.3d 165,
167-68 (2d Cir. 2004); accord Voltaire v. Home Services Systems, Inc., No. 09-CV5668 (SJT)(JO), 2011 WL 4710852, at *90 (E.D.N.Y. Sept. 30, 2011) (“The Second
Circuit recognizes a distinction between claims which allege a violation of §
2615(a)(1) – so-called ‘interference’ claims – and claims which allege violations of
§ 2615(a)(2) and (b), which are called ‘retaliation’ claims.”). The first two counts of
the Complaint are based on these two causes of action.
Plaintiff alleges that “[D]efendants have interfered with Wanamaker’s
exercise of rights under the FMLA by terminating her employment and refusing to
restore her to her position or an equivalent position.” [Dkt #1, Complaint p. 9].
Defendant moved to dismiss Plaintiff’s interference claims, arguing that she “fails
to allege how granting the Plaintiff a classroom teacher position following her 18month leave constitutes interference with and retaliation for exercising her rights
under the FMLA.” [Dkt #15, Def.’s Mot. To Dismiss pp. 8-9].
Although the Second Circuit has addressed claims of interference under
the FMLA in the past, it has not yet articulated or identified the standard for such

18 

claims. See Potenza, 365 F.3d at 168 (declining to articulate a standard as the
claim was truly retaliation, not interference); Sista, 445 F.3d at 168 (declining to
articulate a standard as plaintiff failed to present sufficient evidence). The weight
of authority in the Circuit, as reflected in the decisions of district judges in the
Southern, Eastern, Northern, and Western Districts of New York, holds that in
order to establish a prima facie case of interference in violation of the FMLA a
plaintiff must show that:
(1) [S]he is an ‘eligible employee’ under the FMLA; (2) that [the employer] is
an employer as defiend in [the] FMLA; (3) that [she] was entitled to leave
under [the] FMLA; (4) that [she] gave notice to [the employer] of [her]
intention to leave; and (5) that [she] was denied benefits to which she
was entitled under [the] FMLA.
See Higgins v. NYP Holdings, Inc., 836 F.Supp.2d 182, 191 (S.D.N.Y. 2011); Santos
v. Knitgoods Workers’ Union, Local 155, No. 99-cv-1499, 1999 WL 397500, at *3
(S.D.N.Y. Jun. 15, 1999), aff’d, 252 F.3d 175 (2d Cir. 2001); Baker v. AVI
Foodsystems, Inc., No. 10-cv-00159(A)(m), 2011 WL 6740544, at *13 (W.D.N.Y. Dec.
6, 2011); Debell v. Maimonides Med. Ctr., No. 09-cv-3491 (SLT)(RER), 2011 WL
4710818 (E.D.N.Y. Sept. 30, 2011); Leclair v. Berkshire Union Free Sch. Dist., No.
1:08-cv-01354 (LED/RFT), 2010 WL 4366897, at *5 (N.D.N.Y. Oct. 28, 2010).

As described above, the FMLA guarantees not only 12 weeks of leave, but a
right of reinstatement to your job or its equivalent so long as you are able to
perform the duties of the position. Sista at 174. “Failure to reinstate an employee
to a prior position or its equivalent following FMLA leave is a properly pled FMLA
interference claim.” Gauthier v. Yardney Technical Products, Inc., No. 3:05-cv1362 (VLB), 2007 WL 2688854 at *7 (D. Conn. Sept. 13, 2007); see Roberts v.

19 

Ground Handling, Inc., 499 F. Supp. 2d 340 (S.D.N.Y. 2007) (analyzing a claim
relating to a failure to reinstate following FMLA leave as a claim of interference);
Leach v. State Farm Mut. Auto Ins. Co., 431 Fed. Appx. 771, 776 (11th Cir. 2001)
(“[I]t is undisputed that [employer] refused to let Leach return to his former
position after his FMLA leave ended. Thus, Leach made a prima facie showing of
FMLA interference with his right to reinstatement.”); Ford-Evans v. Smith, 206
Fed. Appx. 332, 335 (5th Cir. 2006) (“[T]he right to reinstatement upon return from
leave is a right protected by the FMLA’s interference provision”); Kauffman v.
Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005).
Here, Plaintiff has alleged that the injuries resulting in her disability
occurred in April 2009 and that she was granted 12 weeks of FMLA leave which
ran concurrently with her paid sick leave. [Dkt #1, Complaint ¶ 13 and Dkt #15,
Def.’s Mot. To Dismiss, Exhibit B]. Plaintiff does allege that she originally said, in
a July 24, 2009 letter to her school’s principal John Bayers, that she “might not
be able to return to work when the school year began on August 27, 2009 and
might require 30 to 60 days of medical leave.” [Dkt #1, Complaint ¶ 16]. However,
Plaintiff also alleged that she subsequently told Bayers during an August 10,
20092 conversation with him that if her employment was at stake, “she would

2

The Complaint technically states the date of this conversation as August 10,
2010, not 2009. However, the Court has assumed this was merely a typographical
error, given the chronological context of the surrounding statements in the
Complaint. See [Dkt #1, Complaint ¶s 16-24, 31] (Stating that the discussion of
the replacement teacher occurred ‘shortly after’ a July 24, 2009 note. This section
of the Complaint also comes immediately before the discussion of an August 16,
2009 conversation. Finally, Plaintiff alleges she was asked to “clean out her
classroom and was placed on leave” on August 17, 2009). Additionally, Plaintiff
20 

return by the beginning of the school year, and at most would need a brief
medical leave, or some reasonable accommodation such as teaching from a chair
instead of standing.” Id. at ¶ 22. Thus Plaintiff has indeed alleged that she had
communicated to Defendants that she had the ability to return to employment at
the beginning of the school year with some reasonable accommodation.
Since Plaintiff has plausibly alleged that she had the ability to return to
work at the end of her FMLA leave, the Court must next determine whether
Plaintiff has pled that her employer refused to reinstate her to her original
position or its equivalent. “An equivalent position is one that is ‘virtually
identical’ to the employee’s former position ‘in terms of pay, benefits, and
working conditions’ and it ‘must involve the same or substantially similar duties
and responsibilities, which must entail substantially equivalent skill, effort,
responsibility, and authority.’” Pizzo v. HSBC USA, Inc., No. 04-CV-114A, 2007 WL
2245903, at *5 (W.D.N.Y. Aug. 1, 2007) (quoting 29 C.F.R. § 825.215(a)).
Despite her offer to return, Plaintiff alleges that she was only offered a
position as a substitute classroom teacher which she claims was not equivalent
to the computer teacher position she had held since 2001, and was in reality a
demotion. Plaintiff then alleges that she retained counsel and sought
reinstatement to her original position in May 2010 which the Board denied.
Plaintiff alleges that the Board instead offered her a full-time classroom teaching
position which was not equivalent to her computer teacher position and contrary
to her doctor’s recommendation that she not be placed in a position other than

alleges that she sought reinstatement in May 2010, action which would be
unnecessary unless she was already replaced by then. Id. at ¶s 31-32.
21 

the computer teacher position due to her disability. Consequently, Plaintiff has
plausibly alleged that a full-time classroom teaching position was not equivalent
to her original full time computer teaching position to survive a Rule 12(b)(6)
challenge. Here, Plaintiff’s allegation that the classroom teaching position is not
equivalent to a computer teaching position is more than a conclusion and is
therefore entitled to the assumption of truth on a motion to dismiss. Accordingly,
Plaintiff has stated a plausible claim for FMLA interference as she has alleged
that she was able to return to work and her employer refused to reinstate her to
her original position or its equivalent. At this early stage the Court must accept
Plaintiff’s allegations of these facts as true. Thus, the Complaint contains
sufficient factual matter, if accepted as true, to state a claim to relief that is
plausible on its face. Therefore, Defendants’ motion to dismiss Plaintiff’s FMLA
interference claim is denied.
5.

FMLA Retaliation Claim

The Second Circuit has stated that, “[i]n order to make out a prima facie
case [of FMLA retaliation], [Plaintiff] must establish that: (1) he exercised rights
protected under the FMLA; (2) he was qualified for his position; (3) he suffered an
adverse employment action; and (4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory intent.” Potenza,
365 F.3d at 168. The “[p]laintiff must demonstrate that her taking FMLA leave
constituted ‘a negative factor in [Defendant's] decision to terminate’ him or her.”
Gillingham v. Geico Direct, No.06-cv-1915(NGG), 2008 WL 189671 at *4 (E.D.N.Y.
Jan. 18,2008) (citing Sista, 445 F.3d at 176); see also Hale v. Mann, 219 F.3d 61, 68

22 

(2d Cir.2000) (holding that the FMLA “protects an employee from discharge or
demotion by an employer if that action is motivated by the employee's taking
leave pursuant to the FMLA.”).
FMLA retaliation claims are examined under the burden shifting framework
established in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Sista, 445 F.3d
at 176. “Under the test set forth in McDonnell Douglas, the plaintiff must first
establish a prima facie case of discrimination. If the plaintiff establishes a prima
facie case, a presumption that the employer unlawfully discriminated against the
plaintiff is raised and the burden of production then shifts to the employer to
articulate a legitimate, clear, specific and non-discriminatory reason for its
actions.” Debell, 2011 WL 4710818, at *8 n.4 (internal quotation marks and
citations omitted). “The employer's burden is “merely one of production, not
persuasion; it can involve no credibility assessment. If the employer satisfies
that burden, the plaintiff has the burden to establish by a preponderance of the
evidence that the employer's stated reason was merely a pretext for
discrimination. In addition, the plaintiff must submit evidence that would permit a
rational fact-finder to infer that the discharge was actually motivated, in whole or
in part, by discrimination.” Id. (internal quotation marks and citations omitted).
However, the “McDonnell Douglas burden-shifting framework is an
evidentiary standard, not a pleading requirement,” therefore a plaintiff need only
allege facts sufficient to state a claim and not sufficient to establish a prima facie
case.” Boykin v. KeyCorp, 521 F.3d 202, 212 (2d Cir.2008) (internal quotations
omitted); see also Peterson v. Long Island R.R. Co., No. 10–cv–480, 2010 WL

23 

2671717, at *2 (E.D.N.Y. June 30, 2010)(“a complaint asserting an employment
discrimination claim, including an FMLA retaliation claim, need not plead specific
facts establishing a prima facie case of discrimination in order to survive a
motion to dismiss”).
Here, Plaintiff has indeed alleged sufficient facts to state a claim for FMLA
retaliation. In fact, Plaintiff has alleged a prima facie case of FMLA retaliation.
She has alleged that she exercised rights under the FLMA, that she was qualified
for her position and that she suffered adverse employment actions as a result of
the proposed transfers to different teaching assignments and her eventual
termination. “In order to constitute an adverse employment action, it is not
enough that defendants' gave plaintiff a subjectively less preferred teaching
assignment; the assignment must be ‘materially less prestigious, materially less
suited to h[er] skills and expertise, or materially less conducive to career
advancement.’” Sotomayor v. City of New York, No.10-cv-3411, 2012 WL 1889780,
at *22 (E.D.N.Y. May 24, 2012) (quoting Galabaya v. New York City Bd. of Educ.,
202 F.3d 636, 641 (2d Cir. 2000)). Here, Plaintiff has alleged that the transfer to a
substitute teaching position or a full time classroom non-computer teaching
position was not equivalent to her original position and basically a demotion.
These allegations therefore plausibly allege on a motion to dismiss that the
teaching assignments were materially less prestigious and materially less suited
to Plaintiff’s skills and expertise as a full time computer teacher to constitute an
adverse employment action. In addition, Plaintiff has alleged that she was
terminated from employment which is a quintessential adverse employment

24 

action. See Moccio v. Cornell Univ., NO.09Civ.2601(PAE), 2012 WL3648450, at
*28 (S.D.N.Y. Aug. 27, 2012) (“termination of employment is the quintessential
materially adverse employment action”). Further, to the extent that an FMLA
retaliation claim is governed by the more liberal standard applied to retaliation
claims under Title VII and the ADA, Plaintiff has certainly alleged facts
demonstrating that the Board’s actions would have dissuaded a reasonable
worker from taking FMLA leave. See Burlington N. & Santa Fe Ry. Co., 548 U.S.
53, 68 (2006).
Lastly, Plaintiff has plausibly alleged that the adverse employment actions
occurred under circumstances giving rise to an inference of retaliatory intent.
Here, Plaintiff has alleged that Huydic inquired as to whether Wanamaker’s
daughter’s health condition would require future surgeries, that Landon told
Huydic that her daughter’s health condition was one of the reasons why
Wanamaker’s computer teaching position had been assigned to another teacher,
and that Landon expressed concern that Wanamaker’s disability and her infant
daughter’s health condition would result in future absences. [Dkt. #1, Compl.,
¶¶23-25]. Plaintiff has also made specific factual allegations that Landon
displayed hostility and animus towards teacher absences as evidence by a
particular letter and email distributed to the teacher’s union. Id. at ¶¶26-30. See
Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 333 (3d Cir. 1995) (“We
have held that a supervisor’s statement about the employer’s employment
practices or managerial policy is relevant to show the corporate culture in which

25 

a company makes its employment decision, and may be used to build a
circumstantial case of discrimination.”).
It is well-established that “[v]erbal comments constitute evidence of
discriminatory motivation when a plaintiff demonstrates that a nexus exists
between the allegedly discriminatory statements and a defendant's decision to
discharge the plaintiff.” Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 518
(S.D.N.Y. 2004). “In determining whether a comment is a probative statement
that evidences an intent to discriminate or whether it is a non-probative ‘stray
remark’, a court should consider the following factors: (1) who made the remark,
i.e. a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark
was made in relation to the employment decision at issue; (3) the content of the
remark, i.e., whether a reasonable juror could view the remark as discriminatory;
and (4) the context in which the remark was made, i.e., whether it was related to
the decisionmaking process.” Id. at 518-19. Here, Plaintiff’s allegations as to
Landon and Huydic’s comments demonstrate the required nexus as supervisors
made the remarks, some of the remarks were made in relation to the employment
decisions at issue, and a reasonable juror could view the remarks as
discriminatory.
Further, Plaintiff also alleged that she was replaced during her FMLA leave
and courts have held that “reassigning an employee’s position during or
following FMLA leave can contribute to an inference of retaliation.” Ridgeway v.
Royal Bank of Scotland Group, No3:11-cv-976(VLB), 2012 1033532, at *12 (citing
Adams v. Northstar Location Services, LLC, No. 09-CV-1063 (JTC), 2010 WL

26 

3911415, at *6 (W.D.N.Y. Oct. 5, 2010)). Taken together, this Court concludes that
Plaintiff has sufficiently shown the indicia of retaliatory intent, necessary to state
a FMLA retaliation claim at the motion to dismiss level. Therefore, Defendants’
motion to dismiss Plaintiff’s FMLA retaliation claim is likewise denied.

B. ADA Claims
Defendants have moved to dismiss Plaintiff’s ADA claims arguing that “the
Plaintiff fails to allege that she is a qualified individual with a disability or how she
suffered an adverse employment action.” [Dkt #15, Def.’s Mot to Dismiss, p. 9].
Upon reviewing Plaintiff’s ADA allegations, it is unclear whether Plaintiff is
asserting a claim for disability discrimination arising from a failure to make a
reasonable accommodation and/or discrimination arising from an adverse
employment action taken because of her disability. On this basis alone,
Plaintiff’s allegations arguably fail Federal Rule of Civil Procedure 8’s
requirement that a pleading must state the “factual allegations that are sufficient
to give fair notice of what the claim is and the ground upon which it rests.”
Andersen News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 168 (2d Cir. 2010)
(internal quotation marks, citations, and alternations omitted).
“A plaintiff makes out a prima facie case of disability discrimination arising
from a failure to accommodate by showing each of the following: (1) [P]laintiff is
a person with a disability under the meaning of the ADA; (2) an employer covered
by the statute had notice of his disability; (3) with reasonable accommodation,
plaintiff could perform the essential functions of the job at issue; and (4) the
27 

employer has refused to make such accommodations.” McBride v. BIC Consumer
Products Mfg. Co., Inc., 583 F.3d 92, 96-7 (2d Cir. 2009) (internal quotation marks
and citation omitted). To establish a prima facie case of discrimination arising
from an adverse employment action, a plaintiff must show “(a) that his employer
is subject to the ADA; (b) that he is disabled within the meaning of the ADA or
perceived to be so by his employer; (c) that he was otherwise qualified to perform
the essential functions of the job with or without reasonable accommodation; and
(d) that he suffered an adverse employment action because of his disability.”
Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir.2008). As it is unclear
what type of ADA claim Plaintiff is raising, the Court will examine the sufficiency
of the pleadings with respect to both types of claims. ADA claims are also
analyzed, like FMLA claims, under the burden shifting framework of McDonnell
Douglas which as discussed above is not relevant to the Court’s analysis on a
motion to dismiss.
As discussed above in connection with Plaintiff’s FLMA claims, Plaintiff
has plausibly alleged that she suffered adverse employment actions when she
was offered non-equivalent teaching positions and then terminated from
employment. The Court therefore finds Defendants’ argument that this claim
must be dismissed due to Plaintiff’s failure to allege that she suffered an adverse
employment action to be unpersuasive. The Court will next examine Defendants’
argument that the claim must be dismissed due to Plaintiff’s failure to allege that
she is disabled within the meaning of the ADA or perceived to be so by her

28 

employer. This prima facie element is common to both types of ADA claims at
issue here.
“To establish a disability, plaintiff must (1) show that [he] suffers from a
physical or mental impairment, (2) identify the activity claimed to be impaired and
establish that it constitutes a ‘major life activity, and (3) show that [his]
impairment substantially limits the major life activity previously identified.”
Kravtsov v. Town of Greenburgh, No.10-cv-3142 (CS), 2012 WL 2719663, at *10
(S.D.N.Y. July 9, 2012) (internal quotation marks and citations omitted).
Since Plaintiff’s claim arises after January 1, 2009, the ADA Amendment
Act of 2008 (“ADAAA”) governs the analysis. The ADAAA “substantially
broadened the definition of a disability under the law, in explicit response to
Sutton v. United Air Lines, 527 U .S. 471 (1999) and Toyota Motor Mftrg. v.
Williams, 534 U.S. 184 (2002), in which the ADA's terms defining disability had
been strictly defined.” Hutchinson v. Ecolab, Inc., No.3:09cv1848(JBA), 2011 WL
4542957, at *7 (D. Conn. Sept. 28, 2011). Under the ADAAA, the definition of
“disability” is construed in “favor of broad coverage of individuals under this
chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C.
§ 12102(4)(A). “Disability” as defined as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individuals; (B) a
record of such an impairment; or (C) being regarded as having such an
impairment.” § 12102(1). “The ADAAA expanded the interpretation of the ADA's
three-category definition of ‘disability.’ For example, ‘major life activity’ includes
‘caring for oneself, performing manual tasks ... walking, standing, lifting, bending,

29 

speaking, breathing. ., and working,’ as well as ‘the operation of a major bodily
function,’ including ‘neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.’” Hutchinson, 2011 WL 4542957, at *8 (quoting Pub.L. No.
110–325, 122 Stat. 3553, 3555 (2008)).
Equal Employment Opportunity Commission (“EEOC”) regulations
implementing the ADAAA although have no binding effect are “useful to
understanding the intended meaning of the Amendments.” Hutchinson, 2011 WL
4542957, at *8 n.6. The EEOC regulations provide that under the ADAAA an
impairment is a disability within the meaning of the statute where “it substantially
limits the ability of an individual to perform a major life activity as compared to
most people in the general population. An impairment need not prevent, or
significantly or severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.” 29 C.F.R. §
1630.2(j)(1)(ii). The regulations further provide that “[a]n impairment that is
episodic or in remission is a disability if it would substantially limit a major life
activity when active.” 29 C.F.R. § 1630.2(j)(1)(vii).
Here, Plaintiff has only alleged that she suffered from the condition of
transverse myelitis and has pled no other facts indicating how this condition
substantially limited one or more major life activities. Consequently, Plaintiff has
not even alleged a “formulaic recitation of the elements of a cause of action”
nonetheless the required factual enhancement to render her claim plausible
under Rule 12(b)(6). Courts have held that “dismissal is appropriate where a
plaintiff fails to allege how an impairment limits a major life activity.” Heckman v.

30 

Town of Hempstead, No.CV10-5455(SJF)(GRB), 2012 WL 1031503, at *4 (E.D.N.Y.
Feb. 24, 2012); Baptista v. Hartford Bd. of Educ., 427 Fed.Appx. 39, 42 (2d Cir.
2011) (“But while Baptista conclusorily alleges that his firing constituted
discrimination on the basis of his alcoholism or HIV-positive status, in none of
his complaints did he describe how either impairment limited any major life
activity—a requirement for a condition to constitute a disability for purposes of
the laws on which he relies.”); Hedges v. Town of Madison, 456 Fed. Appx. 22, 24
(2d Cir. 2012) (rejecting Plaintiff’s argument that the Court should infer plaintiff is
disabled because he alleged that he suffered from a variety of medical conditions
such as Lyme Disease and holding that “even the most liberal standard of
pleadings does not require a court to make such inferences… Assuming the most
minimal of notice pleading standards, a plaintiff is still required to give fair notice
to the defendants of the factual bases for his claims.”); Mary Jo C. v. New York
State & Local Ret. Sys., No.09CV5635(SJF)(ARL), 2011 WL 1748572, at *7 (E.D.N.Y.
May 5, 2011) (dismissing ADA claim for failure to state a claim where plaintiff
alleged she suffered from an unidentified mental illness, but did not “allege any
additional facts plausibly suggesting that such mental illness substantially
limited one of more of her major life activities”). Consequently, dismissal is
appropriate here as the Court is not obliged to infer Plaintiff is disabled as a
result of her allegation that she suffers from transverse myelitis.
The Court further notes that “[p]regnancy does not typically constitute a
disability under the ADA … Moreover, courts generally hold that complications
arising from pregnancy do not qualify as disabilities under the ADA.” Sam-Sekur

31 

v. Whitemore Group, Ltd., No.11-cv-4938(JFB)(GRB), 2012 WL 2244325, at *7-8
(E.D.N.Y. June 15, 2012) (collecting cases). “Only in extremely rare cases have
courts found that conditions that arise out of pregnancy qualify as a disability. In
these cases, it is the physiological impairment that results from complications
that renders the person disabled.” Id. (internal quotation marks and citations
omitted).
Moreover, “temporary, non-chronic impairments of short-duration, with
little or no long term or permanent impact, are usually not disabilities.”
Kennebrew v. N.Y. City Housing Auth., No. 01 CIV 1654, 2002 WL 265120, at *18 n.
32 (S.D.N.Y. Feb. 26, 2002); Leahy v. Gap. Inc., No. 07–CV–2008, 2008 WL 2946007,
at *4 (E.D.N.Y. July 29, 2008) (“For purposes of the ADA, short term, temporary
restrictions are not ‘substantially limiting’ and do not render a person
‘disabled.’”); Green v. N.Y. City Health & Hosp. Corp., No. 04–CV–5144, 2008 WL
144828, at *4 (S.D.N .Y. Jan. 15, 2008) (“To establish a disability under the ADA,
there must be some proof of permanency.”); Adams v. Citizens Advise Bureau,
187 F .3d 315, 316-17 (2d Cir.1999); Williams v. Salvation Army, 108 F.Supp.2d
303, 312-13 (S.D.N.Y.2000) (“temporary, non-chronic impairments of short
duration, with little or no long-term or permanent impact, are usually not
disabilities.”).
It appears that even under the ADAAA’s broadened definition of disability
short term impairments would still not render a person disabled within the
meaning of the statute. EEOC interpretative guidance explains that the “effects
of an impairment lasting or expected to last fewer than six months can be

32 

substantially limiting within the meaning of this section” however “[t]he duration
of an impairment is one factor that is relevant in determining whether the
impairment substantially limits a major life activity. Impairments that last only for
a short period of time are typically not covered, although they may be covered if
sufficiently severe.” 29 C.F.R. pt. 1630, App. (internal quotation marks and
citations omitted).
Since Plaintiff has failed to allege that her transverse myelitis limits a major
life activity and that any impairment as a result of her transverse myelitis was not
for a short period of time, she has failed to state a plausible claim for relief under
the ADA. Accordingly, Plaintiff’s ADA claims will be dismissed without prejudice.
The Court grants Plaintiff leave to amend her complaint, if she can, to allege how
her transverse myelitis substantially limited a major life activity and to clarify
whether she is asserting a claim for disability discrimination arising from a failure
to make a reasonable accommodation, a claim for discrimination arising from an
adverse employment action taken because of her disability or both.
C. CFEPA CLAIMS
In counts four and five, Plaintiff asserts two claims under the Connecticut
Fair Employment Practices Act (“CFEPA”) alleging that Defendants violated both
Section 46a-60(a)(1) and Section 46a-60(a)(7).
1. Section 46a-60(a)(1) Claim
Defendants argue that Plaintiff’s 46a-60(a)(1) CFEPA claim should be
dismissed because the Plaintiff “fails to allege which protected class under
which she is claiming a violation and again, how she was discriminated against.”
33 

[Dkt. #15, p.9 ]. Section 46a-60(a)(1) provides that it shall be a discriminatory
practice to “to refuse to hire or employ or to bar or to discharge from employment
any individual or to discriminate against such individual in compensation or in
terms, conditions or privileges of employment because of the individual's . . .
present or past history of . . . physical disability.” Conn. Gen. Stat. §46a-60(a)(1).
The standards governing discrimination under CFEPA are the same as those
governing ADA claims. See Craine v. Trinity College, 259 Conn. 625, 637 n.6
(2002) (“We look to federal law for guidance on interpreting state employment
discrimination law, and the analysis is the same under both.”).
While Connecticut courts apply the same standards under the ADA to
analyze CFEPA disability claims, Connecticut courts have interpreted CFEPA’s
definition of “disability” to be “broader than the ADA or the ADAAA, because it
covers ‘chronic’ impairments even if not permanent.” Hutchinson, 2011 WL
4542957, at *9. In addition, CFEPA does not require that the chronic impairment
“substantially limit” a major life activity. Grunberg v. Quest Diagnostics, Inc.,
No.3:05-cv-1201, 2008 WL 323940, at *4 n.2 (D. Conn. Feb. 5, 2008). “CFEPA …
provides that ‘[p]hysically disabled’ refers to any individual who has any chronic
physical handicap, infirmity or impairment, whether congenital or resulting from
bodily injury, organic processes or changes or from illness....The statute does
not define ‘chronic,’ but courts have defined it as ‘marked by long duration or
frequent recurrence’ or ‘always present or encountered.’ ... With reference to
diseases, the term ‘chronic’ has been defined to mean ‘of long duration, or
characterized by slowly progressive symptoms; deep-seated or obstinate, or

34 

threatening a long continuance; distinguished from acute.’” Logan v. SecTek,
Inc., 632 F. Supp. 2d 179, 184 (D. Conn. 2009) (quoting Conn. Gen. Stat. § 46a51(15)).
Here, Plaintiff’s CFEPA claim fails for a similar reason as her ADA claim.
Plaintiff only alleges that she suffers from transverse myelitis and has pled no
other facts indicating that this condition is “chronic” within the meaning of
CFEPA. Such an allegation is a naked assertion devoid of further factual
enhancement that fails state a plausible claim for a Section 46a-60(a)(1) CFEPA
violation. See Setkoski v. Bauer, No.HHDCV116023082, 2012 WL 2044805, at *3
(Conn. Super. Ct. May 10, 2012) (holding that plaintiff’s allegations that she had a
serious medical condition that required surgery and a blood transfusion and
three months of medical leave was insufficient to state a claim under CFEPA as
Plaintiff failed to allege “that her condition is continuing or will require
medication or additional procedures” and that “[m]uch like pregnancy
complication that is of a limited duration, the plaintiff's allegation that she
suffered a disability that lasted three months is insufficient to be considered
chronic.”). Accordingly, Plaintiff’s Section 46a-60(a)(1) CFEPA claim will be
dismissed without prejudice. The Court grants Plaintiff leave to amend her
complaint, if she can, to allege how her transverse myelitis is a chronic condition.
2. Section 46a-60(a)(7) Claim
Defendants move to dismiss Plaintiff’s Section 46a-60(a)(7) CFEPA claim
on the basis that Plaintiff failed to allege how their acts violated Section 46a60(a)(7) considering that “Plaintiff was offered an 18-month absence during the
35 

end of her pregnancy and during her medical condition that arose after her
delivery and a position following this 18-month leave of absence.” [Dkt. #15, p.
9]. Section 46a-60(a)(7) provides in relevant part: “It shall be a discriminatory
practice in violation of this section: . . . For an employer, by the employer or the
employer's agent: . . .to fail or refuse to reinstate the employee to her original job
or to an equivalent position with equivalent pay and accumulated seniority,
retirement, fringe benefits and other service credits upon her signifying her intent
to return unless, in the case of a private employer, the employer's circumstances
have so changed as to make it impossible or unreasonable to do so.” Conn. Gen.
Stat. §46a-60(a)(7)(D).
Although there is a paucity of caselaw interpreting Section §46a-60(a)(7)(D),
it is clear that this section provides that it is a discriminatory practice to refuse to
reinstate a pregnant employee to her original job or an equivalent position.
Zamore v. Dyer, 597 F.Supp. 923, 927 (D.Conn. 1984) (“Unlike Title VII, the
Connecticut statute explicitly provides that a public employer must reinstate an
employee to her original or an equivalent position following maternity leave, if
one is granted.”); see also Commission on Human Rights and Opportunities v.
Truelove and Maclean, Inc., 238 Conn. 337, 353-54 (1996); Valenti v. Carten
Controls Inc., No.CIV.3:94CV1769AHN, 1997 WL 766854, at *8 (D. Conn. Dec. 4,
1997). The Connecticut Supreme Court has stated that “Section 46a-60(a)(7)(D)
expressly provides, as a condition precedent to establishing a violation thereof,
that a claimant must “[signify] her intent to return” to employment with the
employer.” Truelove, 238 Conn. at 353-54. As discussed above in connection

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with Plaintiff’s FMLA claims, the Plaintiff has plausibly alleged that the Board
refused to reinstate her to her original position as a full time computer teacher
and that the substitute teacher and full time class room teacher positions were
not equivalent to her original position. Further, Plaintiff has alleged that she did
signify her intent to return to employment during her August 2009 conversation
with Bayers following her maternity leave. Consequently, Plaintiff has made wellpleaded factual allegations, which the Court assumes to be true, that plausibly
give rise to an entitlement to relief under Section 46a-60(a)(7)(D). The Court
therefore denies Defendants’ motion to dismiss Plaintiff’s Section 46a-60(a)(7)
CFEPA claim.
D. Breach of Contract Claim
Lastly, Plaintiff asserts a breach of contract claim, alleging that the
“defendant Board of Education breached the terms of its contracts with the
Westport Education Association of which Wanamaker was a member and express
beneficiary.” [Dkt #1, Complaint ¶ 58]. Plaintiff alleges that the Board violated
Article XIX(A) of the Collective Bargaining Agreement (“CBA”) which provides
that an “employee requiring leave of absence because of disability resulting from
pregnancy shall be granted necessary leave. Such leave shall be granted from
accumulated sick leave as set forth in Article XVII of this Agreement, in
conformity with Section 46a-60 of the Connecticut General Statutes.” Id. at ¶34.
As discussed above, Section 46a-60(a)(7) provides that it is unlawful to refuse to
reinstate a pregnant employee to her original job or to an equivalent position.
Plaintiff appears to be alleging that Article XIX(A) of the CBA by its reference to

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that section of CFEPA made compliance with CFEPA an express term of the
contract. Plaintiff’s breach of contract claims then appears to be entirely
duplicative of her Section 46a-60(a)(7) CFEPA claim which this Court has found to
be plausibly pled to survive a Rule 12(b)(6) challenge.
Defendants move to dismiss the breach of contract claim arguing that a
“board of education decision regarding a termination hearing under the Teacher
Tenure Act can only be appealed pursuant to Conn. Gen. Stat. §10-151(e)” which
provides that an aggrieved teacher may appeal the decision of the board of
education within thirty days of such decision to the Connecticut Superior Court.
[Dkt #15, Def.’s Mot. To Dismiss pp. 21-22]; Conn. Gen. Stat. §10-151(e).
Defendants argue that since Plaintiff failed to appeal the Board of Education’s
decision within 30 days, this Court does not have subject matter jurisdiction over
Plaintiff’s claim. Defendants contend that the issue of whether the CBA
incorporated CFEPA by reference and whether the Board failed to provide an
equivalent position to Wanamaker following her maternity leave was decided at
the termination hearing before an impartial panel whose recommendation the
Board of Education adopted. Defendants argue that Plaintiff cannot maintain an
independent cause of action for breach of contract where her claim is really a
challenge to decision of the Impartial Panel which had to be brought pursuant to
Conn. Gen. Stat. § 10-151(e). Consequently, Defendants argue that Plaintiff’s
breach of contract claim is barred by res judicata and collateral estoppel as a
result of the hearing before the impartial panel. Defendants also argue that this
Court lacks jurisdiction because Plaintiff failed to exhaust the grievance and

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arbitration provisions in the CBA and failed to file a claim against her union for
breach of the duty of fair representation.
Article IX(E)(1) of the CBA states that “[t]he sole remedy available to any
teacher for any alleged breach of this Agreement or any alleged violation of the
teacher’s rights hereunder shall be pursuant to this grievance procedure;
provided, however, that nothing contained herein shall deprive any teacher of any
legal right which he/she may have under statutes applicable to such professional
employees. [Dkt. #28, Ex. A]. The CBA further provides that “[i]f a grievance is
not filed in writing within thirty (30) days from the date on which the event or
condition giving rise to the grievance occurred, then the grievance shall be
considered waived.” Id. at Article IX(B)(2). The CBA outlines four grievance
procedure levels. The first level is referral to immediate authority, the second is
referral to the superintendent of schools, the third is referral to the Board of
Education, and the fourth is referral to Arbitration. Id. at Article IX(F).
Here, Plaintiff has not alleged that she filed a grievance within 30 days of
the Board’s offers of the other teaching positions thereby establishing that she
hasn’t waived her grievance pursuant to Article IX(B)(2).

Moreover, Plaintiff has

not alleged that she has followed the grievance and arbitration provisions
provided for in the CBS.

Under the Federal Arbitration Act (“FAA”), written

agreements to arbitrate “shall be valid, irrevocable and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any contract … A
party aggrieved by the alleged failure, neglect or refusal of another to arbitrate
under a written agreement for arbitration may petition … for an order directing

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that such arbitration proceed in the manner provided for in such agreement.” 9
U.S.C. §§2, 4. This Court has concluded that the FAA “leaves no place for the
exercise of discretion by a district court, but instead mandates that district courts
shall direct the parties to proceed to arbitrate on issues as to which an arbitration
agreement has been signed.” Pomposi v. Gamestop, Inc., No. 3:09-cv-340(VLB),
2010 WL 147196, at *3 (D. Conn. Jan. 11, 2010) (citations omitted). “The FAA
embodies the ‘liberal federal policy favoring arbitration agreements' and
‘establishes that, as a matter of federal law, any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration.’” Guyden v. Aetna,
Inc., 544 F.3d 376, 382 (2d Cir. 2008) (quoting Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)).
Pursuant to the FAA, “the role of courts [in the present context] is limited
to determining two issues: (i) whether a valid agreement or obligation to arbitrate
exists, and (ii) whether one party to the agreement has failed, neglected or
refused to arbitrate.” Shaw Group Inc. v. Triplefine Int’l Corp., 322 F.3d 115, 120
(2d Cir. 2003) (internal quotation marks and citation omitted). In this case, it is
clear that there is a valid agreement to arbitrate, Plaintiff’s breach of contract
claim undeniably falls within the scope of the arbitration provision, and Plaintiff
has failed to arbitrate her claim pursuant to the terms of the CBA. Consequently,
Plaintiff has failed to plausible state a breach of contract claim as she has failed
to allege that she filed a grievance within 30 days as required to preserve her
ability to bring such a claim under the CBA’s arbitration provisions. The Court
therefore dismisses Plaintiff’s breach of contract claim on this basis. The Court
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therefore need not address whether Plaintiff’s breach of contract claim is an
independent action as Plaintiff contends or whether it is barred by res judicata or
collateral estoppel.
IV.

Conclusion

Based upon the above reasoning, Defendants’ [Dkt. #14] motion to dismiss
is DENIED IN PART and GRANTED IN PART. The Court dismisses Plaintiff’s ADA
and CFEPA Section 46a-60(a)(1) claims without prejudice to leave to amend those
claims within 30 days of this Order. The Court further dismisses Plaintiff’s
breach of contract claim with prejudice and dismisses the claims against
Defendant Landon as barred by qualified immunity. The Clerk is therefore
directed to terminate Defendant Landon as a defendant in this action. The rest of
Plaintiff’s claims remain extant for summary judgment and trial.

IT IS SO ORDERED.

________/s/__ ________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 25, 2012

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