D'Amato v. Pardons and Paroles
ORDER: Defendants' Motion to Strike 28 is GRANTED in part and DENIED in part; Defendants' Motion 29 to Dismiss is GRANTED; and Plaintiff's Motion 32 for Joinder is DENIED as moot. Signed by Judge Janet Bond Arterton on 02/19/2013. (Flagg, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Connecticut Board of Pardons and Paroles,
Connecticut Department of Correction, John Ladha,
and Michael Vasile,
Civil No. 3:12cv249 (JBA)
February 19, 2013
RULING ON MOTION TO DISMISS
Plaintiff Milagros D’Amato sues the Connecticut Board of Pardons and Paroles
(“BPP”), the Connecticut Department of Correction (“DOC”), John Ladha, and Michael
Vasile,1 alleging that Defendants discriminated against her on the basis of her ethnicity in
violation of 42 U.S.C. § 1981 and 42 U.S.C. §§ 2000e et seq. (“Title VII”). Plaintiff also
brings two state-law claims that allege that she was punished for availing herself of
workers’ compensation, in violation of Conn. Gen. Stat. § 31-290a, and that Defendants
Lahda and Vasile’s actions toward her constituted intentional infliction of emotional
distress. Defendants move [Doc. # 29] to dismiss. For the reasons that follow, the motion
to dismiss is granted.
Plaintiff named only the BPP in her initial pleadings. As discussed below,
however, the Court will permit Plaintiff to include the additional parties named in the
Corrected Second Amended Complaint [Doc. # 26].
Before reaching the merits of the motion to dismiss, the Court first considers two
additional motions pending before it: Defendants’ Motion to Strike [Doc. # 28] and
Plaintiff’s Motion to Cite-In Additional Defendants [Doc. # 32].
In the motion to strike, Defendants ask the Court (1) to strike the “demonstrably
false” allegation in paragraph eighteen of her complaint that states that Plaintiff’s EEOC
Charge alleged ethnicity discrimination and (2) to deny the “attempted addition without
leave of the Court . . . of three new defendants,” i.e., the DOC, Lahda, and Vasile. (Defs.’
Mem. in Supp. [Doc. # 28-1] at 1, 9.) In considering Defendants’ first request, the Court
may consider the EEOC charge, because it was incorporated by reference in paragraph
eighteen of the Complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002) (“[T]he complaint is deemed to include any . . . statements or documents
incorporated in it by reference.”); see Muhammad v. N.Y.C. Transit Auth., 450 F. Supp.
2d 198, 204 (E.D.N.Y. 2006) (“EEOC charges . . . expressly referred to in the pleading . . .
may be considered incorporated by reference”; see also Briggs v. N.Y. State Dep’t of
Transp., 233 F. Supp. 2d 367, 372 n.1 (N.D.N.Y. 2002)). Because Plaintiff’s EEOC Charge
plainly alleged only age and disability discrimination (see Ex. 2 to Defs.’ Mot. to Dismiss
[Doc. # 29-3])—and not ethnicity discrimination—the Court granted Defendant’s first
request at oral argument and struck the portion of paragraph eighteen that suggested,
contrary to fact, that Plaintiff specifically alleged ethnicity discrimination in her
complaint affidavit to the EEOC.
To evaluate Defendants’ request to exclude the late-joined Defendants, some
procedural background is necessary. On February 20, 2012, Plaintiff filed her complaint
naming the BPP as sole Defendant. On March 14, 2012 and within twenty-one days of
when Plaintiff served her complaint on the BPP, Plaintiff amended her complaint as of
right, without naming additional parties. See Fed. R. Civ. P. 15(a)(1)(A). On April 27,
2012, the BPP moved to dismiss the amended complaint, and, on May 7, 2012, the Court
denied its motion without prejudice, stating that, “[o]n or before May 21, 2012, Plaintiff
Milagros D'Amato may amend her complaint to address the alleged defects and to add as
many facts as permitted under Rule 11.” (May 7, 2012 Order [Doc. # 23].) Plaintiff took
this opportunity to file a Second Amended Complaint [Doc. # 25] that named the DOC,
Lahda, and Vasile as additional Defendants. Eight days later, on May 29, 2012, Plaintiff
filed a Corrected Second Amended Complaint [Doc. # 26]. On May 30, 2012, the Court
accepted this complaint as the operative complaint. (See Mar. 30, 2012 Order
[Doc. # 27].)
Defendants argue that the Court’s May 7 Order authorized Plaintiff to amend her
complaint only for the limited purpose of addressing the defects alleged in the BPP’s
motion to dismiss. Defendants read the scope of the Order too narrowly; the only formal
limitation that the Court imposed was that any new allegations included in the amended
complaint comport with Rule 11 of the Federal Rules of Civil Procedure. In addition, the
Court already accepted the Corrected Second Amended Complaint as the operative
complaint, see Mar. 30, 2012 Order [Doc. # 27], and if the Defendants considered this to
be legal error, they should have moved for reconsideration within fourteen days of the
order pursuant to Local Rule 7(c). Defendants’ request to bar joinder of the new
Defendants is thus denied. Having denied Defendants’ motion to preclude the addition of
the DOC, Lahda, and Vasile, the Court denies as moot Plaintiff’s motion to cite-in the
Defendants that were the subject of Defendants’ motion to strike. The Court deems that
these Defendants—the DOC, Lahda, and Vasile—have joined the pending motion to
dismiss. See Lawrence v. Richman Group Capital Corp., 358 F. Supp. 2d 29, 31 (D. Conn.
Plaintiff Milagros D’Amato, a woman of Dominican ancestry, worked as a parole
officer for Defendant BPP for twenty-two years. (Corrected Second Am. Compl.
(“Compl.”) ¶¶ 3, 8.) On December 4, 2006, Plaintiff injured her left shoulder, when she
fell while moving boxes at work. (Id. ¶ 9.) She was placed on light duty as a result of her
injury and was transferred to the Rescission and Revocation Unit, effective June 15, 2009.
(Id. ¶ 10.) At an unspecified date thereafter, Plaintiff was transferred to a “hazardous
assignment,” even though she still had limited physical capabilities. Plaintiff underwent
two surgeries on her rotator cuff, and, on June 1, 2010, Dr. Eric Olson assessed that
Plaintiff had a 12% impairment of her left shoulder and opined that her work restrictions
should be made permanent. (Id. ¶ 12.)
On June 11, 2010, Defendant Michael Vasile, a human resource specialist for the
DOC who is white, sent Plaintiff a letter advising her of her options, in light of Dr.
Olson’s disability rating. (Id. ¶¶ 7, 13.) On June 14, 2010, “completely flustered and
devastated,” and lacking adequate information, Plaintiff resigned. (Id. ¶¶ 14–15.)
On approximately April 14, 2011, Plaintiff filed a complaint affidavit with the
Equal Employment Opportunities Commission (“EEOC”) alleging that Defendants
discriminated against her on the basis of her age and disability. (Id. ¶ 17.) On November
28, 2011, the EEOC issued a release-of-jurisdiction letter. (Id. ¶ 19.) Plaintiff initiated the
present suit on February 20, 2012.
Count One: Section 1983 Action for Violation of Section 1981
Plaintiff brings Count One pursuant to § 1983, alleging a violation of her rights
under § 1981. Although Plaintiff’s complaint is ambiguous as to against whom the first
count is directed, Plaintiff clarified at oral argument that Count One is brought against
Defendants Lahda and Vasile, and not the BPP or the DOC. (See Pl.’s Opp’n [Doc. # 33-1]
Section 1981 provides that “[a]ll persons within the jurisdiction of the United
States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by
white citizens . . . .” 42 U.S.C. § 1981.
The prohibition in § 1981 against racial
discrimination in contracting encompasses discrimination on the basis of ethnic
characteristics. See Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998) (citing Saint
Francis Coll. v. Al–Khazraji, 481 U.S. 604, 613 (1987)). Section 1983 “constitutes the
exclusive federal remedy for violation of the rights guaranteed in § 1981 by state
governmental units . . . .” Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 733 (1989).
To be liable under § 1983, a defendant must have personal involvement in the violation.
See Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001) (internal
citation and brackets omitted); see also Baker v. Connecticut, No. 03cv1894 (JCH), 2006
WL 581205, at *10 (D. Conn. Mar. 8, 2006).
“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.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Although detailed allegations are not required, a claim will be found facially
plausible only if “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Conclusory allegations will not suffice. Id. at 678–79; see also Fed. R. Civ. P.
Plaintiff’s sparse allegations against Messrs. Ladha and Vaisle do not meet the
pleading standard under Rule 8, which “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). Notwithstanding Plaintiff’s multiple amendments to
her complaint, Plaintiff has not pled facts sufficient to raise a plausible inference that
anyone at the BOP or the DOC engaged in racial or ethnic discrimination against her or
that Defendants Lahda and Vasile had the type of personal involvement required for
them to be liable under § 1983. Plaintiff makes only two allegations against Defendants
Lahda and Vasile: (1) that on June 11, 2010, Vasile “discriminatorily and harassively” sent
a letter to Plaintiff advising her of her options after she received Dr. Olson’s disability
rating (see Compl. ¶ 13); and (2) that Lahda and Vasile placed “undue and discriminatory
pressure” on Plaintiff, causing her to resign (id. ¶ 15). Plaintiff’s allegation of “undue and
discriminatory pressure” is conclusory, as is her characterization that Vasile sent her a
letter “discriminatorily and harrassively,” and, as such, neither assertion is “entitled to the
assumption of truth.” Iqbal, 556 U.S. at 680; see Pungitore v. Barbera, 12-1795-CV, 2012
WL 6621437, at * 2 (2d Cir. Dec. 20, 2012) (summary order) (noting that courts must
refuse to credit conclusory allegations of discrimination); Harris v. Commerce City, No.
09-CV-01728-MSK-KMT, 2010 WL 3307465, at *5 (D. Colo. Aug. 18, 2010) (concluding
that an allegation that the defendants acted to apply “undue pressure” was conclusory).
Disregarding Plaintiff’s conclusory allegations, the viability of Count One depends on the
contents of the June 11, 2010 letter.3 This letter, however, appears to be a form letter
The Court may consider the contents of the letter, even though the letter itself
was not appended to the Complaint, because the letter is incorporated by reference in the
Complaint (see Compl. ¶ 13), is integral to Count One, and is known to Plaintiff. See Yak
advising Plaintiff of her options in light of her disability rating, and there is nothing in its
contents from which racial or ethnic discrimination could plausibly be inferred. (See Ex. 1
to Defs.’ Reply [Doc. # 40].)
At oral argument, Counsel for Plaintiff suggested that paragraph seventeen
contains sufficient factual matter to raise a plausible § 1981 claim. The Court disagrees. In
paragraph seventeen, Plaintiff alleges that she “repeatedly noticed a pattern and practice
of discrimination within the workplace, has experienced a hostile work environment,
disparate treatment and retaliation . . . .” (Compl. ¶ 17). This is nothing more than
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Iqbal, 556 U.S. at 678; see also Hills v. Praxair, Inc., 11-CV-678S, 2012 WL
1935207, at *11 (W.D.N.Y. May 29, 2012) (noting that mere allegation of policy or
practice is insufficient under Rule 12(b)(6)); Payne v. Malemathew, 09-CV-1634 CS, 2011
WL 3043920, at *3-4 (S.D.N.Y. July 22, 2011) (treating assertion of hostile work
environment as conclusory). Devoid of factual allegations of ethnic or racial
discrimination, Count One is dismissed.
Count Two: Title VII
Plaintiff also asserts a claim under Title VII, alleging that she was discriminated
against on the basis of her ethnicity. However, Plaintiff’s claim fails for two reasons—
because Plaintiff did not exhaust her administrative remedies and because her claim is
v. Bank Brussels Lambert, BBL (USA), 252 F.3d 127, 130–31 (2d Cir. 2001); see also Ruiz v.
N.Y.C. Fire Dep’t, No. 00cv4371 AGS, 2001 WL 767009, at *1 n.2 (S.D.N.Y. July 9, 2001).
Failure to Exhaust Administrative Remedies
A court can only “hear Title VII claims that either are included in an EEOC
charge or are based on conduct subsequent to the EEOC charge which is ‘reasonably
related’ to that alleged in the EEOC charge.” Butts v. City of New York Dep’t of Hous. Pres.
& Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as
stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998). “A claim is
considered reasonably related if the conduct complained of would fall within the scope of
the EEOC investigation which can reasonably be expected to grow out of the charge that
was made.” Deravin v. Kerik, 335 F.3d 195, 200–01 (2d Cir. 2003) (internal quotations
and citations omitted); see also Fitzgerald v. Henderson, 251 F.3d 345, 359–60 (2d Cir.
2001) (same). “In determining whether claims are reasonably related, the focus should be
‘on the factual allegations made in the [EEOC] charge itself, describing the discriminatory
conduct about which a plaintiff is grieving.’” Deravin, 335 F.3d at 201 (quoting Freeman
v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir. 2002)).
Defendants argue that Plaintiff failed to exhaust her administrative remedies
because she did not assert in her EEOC charge that she was discriminated against on the
basis of her race or ethnicity, but rather on the basis of her age and disability. (See Defs.’
Mem. at 14–15.) Plaintiff contends that she exhausted her remedies because her race and
ethnicity claim is reasonably related to her previously asserted age and disability
discrimination claims. (See Pl.’s Opp’n at 7–8.) However, “courts in the Second Circuit
have generally held that claims alleging discrimination based upon a protected
classification which are different than the protected classification asserted in
administrative filings are not reasonably related.” Pleau v. Centrix, Inc., 501 F. Supp. 2d
321, 326 (D. Conn. 2007) (citing cases). Here, the allegations in Plaintiff’s EEOC
complaint of age and disability discrimination have not been shown to be reasonably
related to her claim of race and ethnicity discrimination. Plaintiff’s Title VII claim is
therefore barred for failure to exhaust administrative remedies.
Defendants also claim that plaintiff’s administrative filing was untimely and
therefore plaintiff’s Title VII claim must be dismissed as time-barred. Title VII provides
that a claimant must file her employment discrimination charge with the EEOC within
either 180 or 300 days after an “alleged unlawful employment practice occurred.” See 42
U.S.C. § 2000e–5(e)(1). As the Supreme Court observed,
[i]n a State that has an entity with the authority to grant or seek relief with respect
to the alleged unlawful practice, an employee who initially files a grievance with
that agency must file the charge with the EEOC within 300 days of the
employment practice; in all other States, the charge must be filed within 180 days.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
The parties disagree about whether the applicable limitations period is 180 or 300
days because plaintiff never filed any complaint with the state agency, but this debate is
unnecessary to resolve in this case because plaintiff’s EEOC filing was untimely under the
300 day filing limitation.4
Plaintiff argues that because Connecticut has the Commission on Human Rights and
Opportunities (“CHRO”), the relevant time period is 300 days, regardless of whether
Plaintiff in fact filed with the CHRO. Where work-sharing agreements exist between the
EEOC and the state anti-discrimination agency, a claim of “dual filing” may suffice to
meet this requirement. See Aukstolis v. Ahepa 58/NATHAN Hale Senior Ctr., No. 3:07CV-51(JCH), 2007 WL 1341235, at *4 (D. Conn. May 4, 2007) (“At the very least, a
plaintiff seeking to establish a ‘dual filing’ must show that a work-sharing agreement was
in effect between the CHRO and EEOC when the plaintiff filed [his/her] original
administrative charge, and that, under the agreement, the CHRO would deem a filing
with the EEOC to be a dual filing with the CHRO.”). See also, Wilks v. Elizabeth Arden,
Inc., 507 F. Supp. 2d 179, 190 (D. Conn. 2007) (“Connecticut has its own anti9
Defendant Vasile’s letter to Plaintiff constitutes the last possible employment
action that can be inferred from Plaintiff’s complaint (no matter how or when she
responded to it) and for the purposes of determining whether Plaintiff’s Title VII claims
are time-barred, the Court will assume that this letter does constitute an adverse
employment action. Proceeding on this assumption, the limitations period began to run
on June 14, 2010, three days after the date on Defendant Vasile’s letter (see Compl. ¶ 13),
see also Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) (“Normally it is
assumed that a mailed document is received three days after its mailing.”). Plaintiff filed
her charge with the EEOC on April 14, 2011, 304 days after the filing limitation period
began to run and thus her Title VII claim must be dismissed for failure to timely exhaust
Remaining Claims under Connecticut Law
Having dismissed Plaintiff’s federal claims, the Court declines to exercise
supplemental jurisdiction over the state-law claims raised in Counts Three and Four.
“While the statute governing supplemental jurisdiction, 28 U.S.C. § 1367, does not
require dismissal of pendent state-law claims where all of the federal claims have been
dismissed,” Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) (collecting
cases), the Second Circuit “has held, as a general proposition, that ‘if [all] federal claims
are dismissed before trial . . . , the state claims should be dismissed as well,’” Motorola
Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004) (quoting United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966)).
discrimination agency, the CHRO. Thus, the 300-day limitation applies to the Plaintiff's
For the reasons stated above, Defendants’ Motion to Strike [Doc. # 28] is
GRANTED IN PART and DENIED IN PART; Plaintiff’s Motion to Cite-In Additional
Defendants [Doc. # 32] is DENIED as moot; and Defendants’ Motion to Dismiss [Doc.
# 29] is GRANTED. The Clerk is directed to close the case.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 19th day of February, 2013.
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