Turner v. Eastconn Regional Education Service Center et al

Filing 24

ORDER granting in part and denying in part 10 Motion to Dismiss. See attached Order. Signed by Judge Vanessa L. Bryant on 3/15/2103. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

REBECCA A. TURNER,
PLAINTIFF,
v.

EASTCONN REGIONAL EDUCATION
SERVICE CENTER; PAULA COLEN;
STEVEN WAPEN; DORIS DYER; THOMAS
CRONIN; and RONALD MORIN,
DEFENDANTS.

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CIVIL ACTION NO.
3:12-cv-788(VLB)

MARCH 15, 2013

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS [Dkt. #10]

The Plaintiff, Rebecca A. Turner (“Turner”), brings this action against the
Eastconn Regional Education Service Center (“Eastconn”) and against Eastconn
employees’ Doris Dyer (“Dyer”), Ronald Morin (“Morin”),Thomas Cronin
(“Cronin”), Steven Wapen (“Wapen”), and Paula Colen (“Colen”). Turner, a
teacher in Eastconn’s Autism Program, asserts a plethora of violations of federal
and state employment laws as well as several state contract and tort claims
relating to the circumstances involving her leave and then termination from
employment following a difficult pregnancy. Currently pending before the Court
is a motion to dismiss filed by the Defendants seeking to dismiss certain claims
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the following reasons, the
Court denies in part and grants in part Defendants’ motion to dismiss as
delineated in the conclusion.

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Factual Background
Turner’s employer, Eastconn, is a regional educational service center
(“RESC”) established by several local municipal boards of education pursuant to
state law. Conn. Gen. Stat. §10-66a provides that “[a] regional education service
center may be established in any regional state planning area…upon approval by
the State Board of Education of a plan of organization and operation submitted by
four or more boards of education for the purpose of cooperative action to furnish
programs and services.” Id. The statutory framework provides that the
“operation and management of any regional educational service center shall be
the responsibility of the board of such center to be composed of at least one
member from each participating board of education, selected by such board of
education.” Conn. Gen. Stat. §10-66b.
The statute further provides that “[a] regional educational service center
shall be a body corporate and politic. The board of a regional educational service
center shall be a public educational authority acting on behalf of the state of
Connecticut and shall have the power to sue and be sued, to receive and
disburse private funds and such prepaid and reimbursed federal, state and local
funds as each member board of education may authorize on its own behalf, to
employ personnel, to enter into contracts, to purchase, receive, hold and convey
real and personal property and otherwise to provide the programs, services and
activities agreed upon by the member boards of education.” Conn. Gen. Stat.
§10-66c(a). “Each board of a regional educational service center shall submit a

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yearly budget and projected revenue statement to each member board of
education and to the State Board of Education. The accounts and financial
records of all boards of regional educational service centers shall be audited
annually in the same manner as the accounts of local or regional boards of
education and copies provided to each member board of education and to the
State Board of Education” Conn. Gen. Stat. §10-66g. “The board of a regional
educational service center shall annually, following the close of the school year,
furnish to each member board of education and the State Board of Education an
evaluation of the programs and services provided by the board of the regional
educational service center.” Conn. Gen. Stat. §10-66h. Further, “[a]ll state
statutes concerning education, including provisions for eligibility for state aid
and the payment of grants … with respect to bonds, notes or other obligations
issued by a regional educational service center to finance building projects
approved by the Commissioner of Education, shall apply to the operation of
regional educational service centers.” Conn. Gen. Stat. §10-66i.
The statutory framework authorizes each RESC to borrow and issue bonds
in its own name, notes or other obligations for the purpose of carrying out or
administering a RESC program, program or other function. .” Conn. Gen. Stat.
§10-66c(b). Any bonds, notes or other obligations issued by the RESC “shall not
be obligations of the state of Connecticut or any municipality, and each such
bond, note or other obligation shall so state on its face.” .” Conn. Gen. Stat. §1066c(c). “Each board of education and nonpublic school in the area served by a
regional educational service center may determine the particular programs and

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services in which it wishes to participate in accordance with the purpose of this
part.” Conn. Gen. Stat. §10-66d. “The necessary administrative and overhead
expenditures as determined by the board of the regional educational service
center shall be shared jointly by the participating boards of education. In addition
any participating board of education and nonpublic school shall be required to
pay a prorated share of the costs of any program or service to which it
subscribes.” Conn. Gen. Stat. §10-66e. “[A]ny participating member of a board
of a regional educational service center may revoke such participation by giving
notice to such board of its intention to terminate its participation at least six
months prior to the start of the fiscal year beginning July first.” Conn. Gen. Stat.
§10-66k(a). However, “no withdrawal or termination of participation by any
member board of education shall affect any pledge, agreement, assignment or
mortgage of any income, revenue, proceeds or property of a regional educational
service center made for the benefit or security of any bonds, notes or other
obligations or any repayment obligations under any credit or liquidity facility
provided pursuant to this chapter.” Conn. Gen. Stat. §10-66k(b).
Turner began working for Eastconn as an instructional assistant on
November 4, 2008. [Dkt. #1, Compl., ¶10]. She became a long-term substitute in
the Autism Program on April 8, 2009 and then hired as a Teacher on July 6, 2009
in the Autism Program, “which works with children with Autism Spectrum
Disorders and other developmental disabilities, including children that have the
recognized capacity to become aggressive and/or inflict harm on others.” Id. at
¶11. Dyer was the Autism/Clinical Director at Eastconn and Turner’s direct

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supervisor. Id. at ¶3. Morin was the Clinical Director at Eastconn and was Dyer’s
direct supervisor. Id. at ¶4. Cronin was the Director of Education Services and
was Morin’s supervisor. Id. at ¶5. Wapen was the Director of Human Resources
for Eastconn. Id. at ¶6. Colen was Eastconn’s executive director. Id. at ¶7.
Turner became pregnant with twins which were due to be born on
December 26, 2010. Id. at ¶9. She delivered her twins early on November 24,
2010. Id. Prior to her pregnancy, Turner received positive performance
evaluations including her most recent performance evaluation dated May 28, 2010
by Dyer. Id. at ¶16. Turner alleges that she was unlawfully terminated on January
5, 2011 on the basis of her gender, pregnancy, physical disability and/or familial
status and was subjected to a discriminatory scheme and/or hostile work
environment “implemented by Dyer, whose conduct and demeanor became
increasingly hostile and derogatory as Turner’s pregnancy continued.” Id. at ¶18.
Turner alleges that she was denied accommodations for her pregnancy while
another similarly situated employee, Allyson Carter, received accommodations
while pregnant. Id. at ¶20.
On April 26, 2010, Turner submitted a doctor’s note to Dyer stating that she
could not restrain students and as a result Eastconn did not require her to
engage in restraining. Id. at ¶22. On September 8, 2010, Turner submitted an
additional doctor’s note to Dyer stating that she should not be working closely
with children who can become aggressive. Id. at ¶23. Turner alleges that Dyer’s
response was to question whether she could perform her job, stating: “can you
even work?” Id. at ¶24. Turner alleges that at an earlier point in Turner’s

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pregnancy, Dyer also had commented to Turner “you don’t even look pregnant.”
Id. “On November 24, 2010, Turner's children were born prematurely. One was
born with a cleft lip and is smaller than average and the other was diagnosed with
intrauterine growth restriction ("IUGR"), being abnormally small. As a result, both
children are subject to short- and long-term risks, including developmental
issues.” Id. at ¶45.
Turner contends that Dyer’s demeanor became “cold and condescending
from September 8, 2010 forward.” Id. at ¶26. “On September 9 and 10, 2010,
Turner did not work directly with student but was permitted to work on her
administrative duties while Human Resources personal discussed Turner’s
situation. Id. at ¶¶27-28.

“On September 13, 2010, Turner met Dyer, who told her

she would have to take FMLA leave starting September 27, 2010, because she
was unable to do her job.” Id. at ¶29.
On September 14, 2010, Turner spoke with Wapen who “informed her that
she would going to be made to take FMLA leave of September 27, 2010.” Id. at
¶31. Wapen allegedly “informed Turner that according to Dyer there as ‘nonclassroom work’ available but ‘no safe place in the classroom.’” Id. Turner
alleges Wapen said “there was no position available at that time to accommodate
Turner and that her job would not be secure after 12 weeks passed.” Id. at ¶32.
Wapen advised her that she could request more time off after the FLMA leave
period was completed. Id. at ¶33.Turner alleges that Dyer harassed her regarding
her FMLA leave and “felt she was being watched and questioned constantly
about her pregnancy.” Id.

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On September 15, 2010, Turner contacted her union’s vice president and
also emailed the vice president and president of the union. Id. at ¶35. On
September 16, 2010, the union president informed Turner by email that if Turner
could not do her job and there were no other positions, she would have to take
FMLA leave. Id. at ¶35.
On September 20, 2010, Turner met with Cronin, but no union
representative was present as she requested. Id. at ¶37. At that meeting, Turner
requested accommodations until her due date of December 26 2010 and
expressed her concern about the lack of job security once her FMLA leave was
used. Id. at ¶37. Turner alleges that Cronin told her that her request would be
denied but that she could take as much time as she needed to be with her babies
and return to work when she felt comfortable. Id. at ¶38. Turner alleges that
Cronin further told her that she did not have to worry about losing her job as it
was being covered by a substitute. Id. at ¶39. Turner and Cronin also discussed
that Turner’s job description stated that 90% of her job was in administrative
capacity. Id. Turner alleges that Eastconn would not make reasonable
accommodations and instead forced her to take FMLA leave earlier than needed
“despite not being totally restricted from her work by her physician.” Id.
On September 22, 2010, Turner met with the union president and vice
president, treasurer and another union member. Id. at ¶40. As that meeting,
Turner alleges she was told that “another pregnant employee non-party Allyson
Carter, at EASTCONN’s Pace North Site was receiving accommodations to ensure
her safety from children with behavioral problems and violent tendencies.” Id.

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Turner contends that the union was not supportive towards her and did not
“assist her in rectifying the situation.” Id.
On September 24, 2010, Turner met with Cronin who told her to get her
doctor’s note changed to allow her to continue working in the classroom until her
projected due date. Id. at ¶41. On September 27, 2010, Turner submitted a third
doctor’s note stating that she “could perform all of her job responsibilities with
the exception of having one on one contact with aggressive children.” Id. at ¶42.
On September 30, 2010, Dyer informed Turner that she would be permitted to
work until October 1, 2010. Id. at ¶43.
On October 1, 2010, Turner emailed Cronin regarding her third doctor’s
note. Id. at ¶44. Wapen responded to her informing her that her FMLA would start
on Monday, October 4, 2010 despite the doctor’s note. Id. Turner then met with
Dyer and directly asked for accommodations. Id. at ¶45. Dyer informed her that
it was out of her hands and that she did all she could. Id. Turner alleges that the
Defendants failed to transfer her to a suitable available temporary position. Id. at
¶46.
On December 30, 2010, Turner asked Wapen orally for more leave time
because of her children’s health issues. Id. at ¶49. Wapen informed her that she
would not receive any more leave and would be removed from the payroll. Id. at
¶50. Turner received a certified letter from Wapen stating that her employment
was being terminated as of January 5, 2011, purportedly because she was not
able to return to work. Id. After her termination, Eastconn changed the
requirements for Turner’s position to include a special education certification,

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which Turner does not have. Id. at ¶53. Turner alleges that her position was
filled by a non-pregnant woman. Id. at ¶54. On an unspecified earlier date,
Turner alleges that she met with Morin to discuss her feelings that Dyer was not
acting appropriately. Id. at ¶47. Morin told her that he would not do anything
and that Colen was aware of her situation and approved of how she was treated.
Id.
Turner’s employment with Eastconn is governed by the Collective
Bargaining Agreement (“CBA”) between Eastconn and the Eastconn Federation
of Teachers. [Dkt. # 10, Attachment A, CBA]. The CBA provided a four-level
grievance procedure to “equitably resolve any alleged breaches of this contract.”
Id. at Art 2.A. Grievance is defined as a “violation of a specific term or terms of
this contract to the detriment of a teacher or group of teachers or the Federation.”
Id. at Art 2.B.1. The first level requires the grievant to file a written formal
grievance with the immediate supervisor specifying the term or terms of the
contract that the grievant believes has been breach. Id. at Art D.1. Within five
days, the immediate supervisor is required to hold a meeting and within 4 days of
that render a decision giving reasons in writing. Id. Level Two provides that the
grievant may within 5 days after the decision or 7 days after the Level One
meeting file the grievance with the Executive Director. Id. at Art 2.D.2. The
Executive Director shall within five days meet with the grievant and within five
days of that render a decision giving reasons in writing. Id. Level Three provides
that the grievant may within 5 days after the decision or 8 days after the Level
Two meeting file the grievance with the Eastconn Board of Directors. Id. at Art

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2.D.3. The Board shall within ten days meet with the grievant and within five days
of that render a decision giving reasons in writing. Id. Level Four provides for
binding arbitration. Id. at Art 2. D.4. In connection with the grievance procedure,
the “grievant may be represented at any level of the grievance procedure by a
person of his own choosing provided, however, that such person shall not be an
official or a representative of any other teacher organization. When a teacher is
not represented by the Federation, the Federation shall be notified and have the
right to be present and to state its views at any level of the grievance procedure.”
Id. at Art 2.E.2. Article 10 provided that “[a]n employee shall have the right to
have a Federation representative present to observe ay any conference by an
administrator to discuss matters which may affect the employee’s position with
respect to discharge, resignation or demotion. Id. at Art 10.A.
The CBA provided that it is recognized that the Eastconn Executive Board
“has and will continue to retain, whether exercised or not, the sole and
unquestioned right, responsibility and prerogative to direct the operation of
EASTCONN in all its aspects, including but not limited to the following… [t]o
discharge or otherwise discipline any employee…[;] [t]o promote, transfer, and
lay off employees…[;] [i]n general, to control, supervise and manage the
operations of EASTCONN and its professional staff under governing laws.” Id. at
Art 1.B.6,7, and 13. The CBA provided for unpaid pregnancy disability leave
beyond any accumulated sick leave which “shall be available for such reasonable
further period of time as a female employee is determined by her physician to be
disabled from performing the duties of her job because of pregnancy or

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conditions attendant thereto.” Id. at Art 13. It also provided for unpaid
childbearing leave to any “certified tenured professional employee.” Id. at Art
14. The CBA also provided that Eastconn may grant an unpaid leave of absence
upon which the teacher “shall be entitled to return to the same or similar position
to the extent possible.” Id. at Art 15.
Turner has asserted eighteen claims in her complaint. She has alleged that
she was unlawfully discriminated against based on her gender, pregnancy
physical disability, and/or familial status in violation of the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §46a-60(a)(1),(5), and (7)
and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.
and as amended by the Pregnancy Discrimination Ave, 42 U.S.C. §2000e(k) (“Title
VII”). Id. at Counts 1 and 2. Turner also alleged a violation of the Connecticut
Family and Medical Leave Act, Conn. Gen. Stat. §31-51kk, et seq. (“CTFMLA”) as
was as the federal Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2611, et
seq. Id. at Counts 3 and 5. In addition, Turner asserts that the Defendants also
violated the family and medical leave provision of the State Personnel Act, Conn.
Gen. Stat. §5-248a, which apply to state employees. Id. at Count 4. Turner
alleges that she was discriminated against on the basis of her physical or
physiological impairments as a result of her pregnancy in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq. Id. at Count 6.
Turner also asserts claims for breach of written or implied contract as to
the Articles 3, 5, 10, 13, 15 of the CBA which governs her employment as well as

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the Eastconn employee handbook. [Dkt. # 1, Compl., Count 7].1 She also asserts
a claim for breach of the covenant of good faith and fair dealing on the same
basis as her Count 7 breach of contract claim. Id. at Count 8. She claims breach
of oral contract and breach of the covenant of good faith and fair dealing on the
oral contract on the basis that Cronin told her that she could take as much time
as she needed to be with her babies and return to work when she felt
comfortable. Id. at Counts 9 and 10. Turner brings claims for promissory
estoppel, negligent misrepresentation, and fraud/ intentional misrepresentation
on the basis of Cronin’s comment. Id. at Counts 11, 12, and 13. Various claims
of negligent supervision are asserted alleging that Morin failed to supervise Dyer
who engaged in discriminatory conduct, that Cronin failed to supervise Morin
who engaged in discriminatory conduct and that Colen failed to supervise
Wapen, Cronin, Morin and Dyer. Id. at Counts 14, 15, and 16. Lastly, Turner
alleges that the Defendants’ conduct throughout her termination process resulted
in the negligent and intentional infliction of emotional distress. Id. at Counts 17
and 18.
Legal Standard
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
‘short and plain statement of the claim showing that 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

1
 Article 3 of the CBA governed teacher assignments and Article 5 governed

teacher transfers.

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‘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, 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).

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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
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).
Analysis
I.

Title VII and CEFPA Claims

The Defendants move to dismiss Turner’s Title VII and CFEPA claims that
she was discriminated against on the basis of her gender, pregnancy and familial

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status.2 Defendants argue that Turner cannot make out a prima facie case of
discrimination under Title VII or CFEPA because she was not qualified for her
position as she did not possess the appropriate certification. They further argue
that Turner has failed to plead an inference of discrimination because both the
similarly situated individual receiving allegedly favorable treatment and her
allegedly discriminatory supervisor were within the same protected class as
Turner. [Dkt. #10, Def. Mem., p. 4-10]. In addition, Defendants argue that her
termination did not occur under circumstances giving rise to an inference of
discrimination but rather the operation of and compliance with the FMLA. Id.
Lastly, Defendants argue that familial status is not a protected class under Title
VII or CFEPA and therefore Turner’s claims based on familial status should be
dismissed. [Dkt. #10, Def. Mem., p. 10].
Turner concedes that familial status is not a protected class and therefore
the Court dismisses her claims based on “familial status.” [Dkt. #13, Pl. Mem., p.
13n.5]. In response, Turner argues that she has alleged a prima facie case of
pregnancy discrimination under Title VII and CFEPA. As Turner does not argue
that she has asserted a separate Title VII claim based on her gender apart from
her pregnancy, this Court construes her complaint to assert a single Title VII and
CFEPA claim on the basis of pregnancy discrimination. To the extent that is not

2
 It is well established that CFEPA claims proceed under the same analysis as

Title VII claims. Craine v. Trinity Coll., 259 Conn. 625, 637 n.6 (2002)
(holding that the Connecticut Supreme Court looks to federal precedent when
interpreting and enforcing the CFEPA); McInnis v. Town of Weston, 375 F. Supp.
2d 70, 85 (D. Conn. 2005).

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the case, Turner fails to make any allegations that she suffered unlawful
discrimination on the basis of her gender apart from her claim of pregnancy
discrimination and therefore the Court dismisses such a separate claim based on
gender alone.
“The pleading standard for employment discrimination complaints is
somewhat of an open question in our circuit.” Hedges v. Town of Madison, 456 F.
App’x 22, 23 (2d Cir. 2012). The Second Circuit has explained that “[p]rior to
2002, we required that plaintiffs claiming employment discrimination plead a
prima facie case under the McDonnell–Douglas framework, which in turn required
the plaintiff to show “‘(1) membership in a protected group; (2) qualification for
the job in question; (3) an adverse employment action; and (4) circumstances that
support an inference of discrimination.’” Id. (quoting Swierkiewicz v. Sorema N.
A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). However, “the Supreme
Court in Swierkiewicz v. Sorema N.A. expressly held that an employment
discrimination plaintiff need not plead a prima facie case of discrimination,
indicating that notice pleading under Rule 8(a) was sufficient for employment
discrimination act claims.” Id. (internal quotation marks and citation omitted).
The Supreme Court’s decision in Swierkiewicz came before Bell Atlantic Corp. v.
Twombly and Ashcroft v. Iqbal and relied on the Conley standard which those
cases rejected. Id. Consequently, “Swierkiewicz's reliance on Conley suggests
that, at a minimum, employment discrimination claims must meet the standard of
pleading set forth in Twombly and Iqbal, even if pleading a prima facie case is not
required.” Id. However, the Court need not address this issue because the

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Plaintiff’s complaint has alleged facts sufficient to state an employment
discrimination claim on the basis of pregnancy under either standard.
Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to
clarify that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are
not limited to, because of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related purposes
... as other persons not so affected but similar in their ability or inability to work.”
42 U.S.C. § 2000e(k). “Like other claims of employment discrimination, claims
under the PDA that cannot be directly proven are analyzed under the three-step
burden shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973).” Canales v. Schick Mfg., Inc., No.3:09cv253(MRK), 2011 WL
4345006, at *1 (D. Conn. Sept. 15, 2011). To establish a prima facie case of
pregnancy discrimination, a plaintiff must show that “‘(1) she is a member of a
protected class; (2) she satisfactorily performed the duties required by the
position; (3) she was discharged; and (4) [either] her position remained open and
was ultimately filled by a non-pregnant employee ... [or] the discharge occurred in
circumstances giving rise to an inference of unlawful discrimination .’” Id.
(quoting Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir.1998)). The burden of
establishing a prima facie case of pregnancy discrimination is de minimis. Id. at
2. “A pregnancy discrimination claim under the CFEPA is analyzed similarly to a
federal claim under Title VII, as amended by the Pregnancy Discrimination Act.”

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Baron v. Maxam North America, Inc., No.3:11-cv-198(JCH), 2012 WL 1247257, at *4
(D. Conn. April 13, 2012).
“The PDA applies to ‘women affected by pregnancy, childbirth, or related
medical conditions,’—not just to women who are pregnant.” Canales, 2011 WL
4345006, at *1 (quoting 42 U.S.C. § 2000e(k)) (emphasis in the original); see .e.g.,
Helmes v. South Colonie Cent. Sch. Dist., 564 F.Supp.2d 137, 147 (N.D.N.Y.2008)
(“Certainly, women who are pregnant at or very near the time of the adverse
employment action are members of the protected class, as are women who are on
maternity leave or recently have returned to work from maternity leave when the
employment action occurs.” ); Briggs v. Women in Need, Inc., No. 10–CV–2265
(RRM)(JO), 2011 WL 3794157, at *6 (E.D.N.Y. Aug. 24, 2011) (“The time at which
the plaintiff ceases being ‘affected by pregnancy, childbirth, or related medical
conditions' depends on the facts and circumstances of the particular case.”);
Leichter v. St. Vincent's Hosp. & Med. Ctr. of New York, No. 94 Civ. 7537(DAB),
2001 WL 1160748, at *6 (S .D.N.Y. Sept. 28, 2001) (“As the PDA makes clear, a
plaintiff need not be pregnant at the time she suffered a discriminatory
employment decision.”); Gaugaiz v. Laboratoires Esthederm USA, Inc., No. 98
Civ. 4465(LMN), 2000 WL 1528212, at *5 (S.D.N.Y. Oct. 16, 2000) (“Although [the
plaintiff] was not pregnant at the time of her termination, the statute does not
require pregnancy to be a member of the protected class.”); Shafrir v. Ass'n of
Reform Zionists of Am., 998 F.Supp. 355, 363 (S.D.N.Y.1998) (“Even though
plaintiff was neither pregnant nor ill at the time she was discharged, she had

18 

recently given birth and was on maternity leave. Because she claims she was
discharged because of childbirth, the PDA is properly invoked.”).
The Defendants argue that Turner has failed to establish that she was
qualified for the position because the position required a special education
certification. However, Turner has alleged that this requirement was only
imposed after her termination and therefore it does not speak to whether she
satisfactorily performed the duties required by the position at the time she held it.
Turner has alleged that she received performance evaluations from Dyer,
including her most recent evaluation dated May 28, 2010 and therefore she has
alleged that she satisfactorily performed the duties required by the position at the
time she held the position. In addition the Plaintiff has pled that she was not
terminated for cause.
Defendants next argue that Turner cannot demonstrate that her discharge
occurred under circumstances giving rise to an inference of unlawful
discrimination because Dyer was also a female and that Allyson Carter was a
pregnant female. Because Turner has asserted a claim of pregnancy
discrimination, Dyer would not fall into that protected class as there are no
allegations that she was also pregnant or had recently given birth. The
Defendants are correct though that Turner’s allegation that a similarly situated
pregnant employee, Allyson Carter, received favorable treatment would
undermine any inference that the Defendants were motivated by anti-pregnancy
animus.

19 

Turner has nonetheless satisfied the fourth prong because she has alleged
that her position remained open and was ultimately filled by a non-pregnant
employee, which is sufficient to establish a prima facie case of pregnancy
discrimination. See e.g., Habe v. 33 Bayville Ave. Restaurant Corp., No.09-CV1071, 2012 WL 113501, at * (E.D.N.Y. Jan. 13, 2012) (finding that plaintiff
established prima facie where plaintiff was replaced by a non-pregnant
employee); Spadaro v. McKeon, 693 F.Supp.2d 183, 190 (N.D.N.Y.2010) (“Viewing
the facts presented in the light most favorable to Plaintiff, she has also met the
fourth prong, namely that her position remained open, as suggested by her
seeing the website posting of its availability shortly after her termination, and the
filling of that position with a non-pregnant, male applicant, Mr. Vicente.”).
Defendants’ motion to dismiss Turner’s Title VII and CFEPA pregnancy
discrimination claims are denied as Turner has pled facts sufficient to establish a
prima facie case of pregnancy discrimination at the motion to dismiss stage
II.

Title VII and CEFPA Claims – Individual Liability

Defendants argue that the Title VII and CFEPA claims against the individual
defendants should be dismissed because neither statute provides for liability
against individual employees. [Dkt. #10, Def. Mem., p. 11]. Turner concedes that
the individual defendants cannot be held liable under Title VII and the Court
therefore dismisses her Title VII claim against those defendants. [Dkt. #13, Pl.
Mem. p.13]. However, Turner argues that her CFEPA claim can survive against
the individual defendants under Conn. Gen. Stat. §46a-60(a)(5). The Connecticut
Supreme Court has held that Section 46a-60(a)(1) of CFEPA “does not impose

20 

liability on individual employees.” Perodeau v. City of Hartford, 259 Conn. 729,
737 (2002). In coming to that conclusion, the Connecticut Supreme Court
explicitly distinguished Section 46a-60(a)(1) from 46a-60(a)(5), the aiding and
abetting provisions of CFEPA, which expressly refer to “persons” in addition to
“employers.” Id. at 737-38. Section 46a-60(a)(5) provides that it “shall be a
discriminatory practice in violation of this section… [f]or any person, whether an
employer or an employee or not, to aid, abet, incite, compel or coerce the doing
of any act declared to be a discriminatory employment practice or to attempt to
do so.” Id. The Defendants acknowledge that recovery against a supervisory
employee is cognizable under the aiding and abetting provision contained in
Section 46a-60(a)(5), but argue that Turner does not allege that the Defendants
aided or abetted each other. [Dkt. #10, Def. Mem.,p.13n.1].
Turner’s complaint does allege that the Defendants’ “discriminatory
scheme also constituted a pattern or practice of discrimination attributable to
EASCTOON, and the scheme was aided or abetted by Dyer, Cronin, Morin, Wapen
and/or Cronin’s conduct.” [Dkt. #1, Compl., ¶10]. Turner further argues that the
numerous detailed allegations regarding each individual defendants’ particular
conduct supports her allegation of aiding and abetting. [Dkt. #13, Pl. Mem., p. 1314]. District courts in this circuit have “held that liability lies under this statute
when a party in some way ‘helps or compels’ another individual, but not a
company, to act in a discriminatory manner.” Read v. Nationwide Mut. Ins. Co.,
No.3:06-cv-514(JCH), 2006 WL 2621652, at *3 (D. Conn. Sept. 13, 2006); see also
Wasik v. Stevens Lincoln-Mercury, Inc., No. 3:98-cv-1083 (DJS), 2000 WL 306048,

21 

at *7 (D.Conn. March 20, 2000) (finding there was a cognizable claim for individual
liability under Section 46a-60(a)(5) where other employees’ actions “ratified,
endorsed and perpetrated” another employee's unlawful conduct).
Turner has alleged that Dyer made anti-pregnancy comments to her and
her allegations support the reasonable inference that Dyer was the moving force
behind her being placed on FMLA leave. [Dkt. #1, Compl., ¶¶23-24, 26]. Turner
has also alleged that she complained to Morin about Dyer’s treatment of her and
that Morin told her that he would not do anything about Dyer. Morin further told
Turner that Colen was aware of the situation and approved of the treatment
Turner had received. Id. at ¶47. Tuner further alleges that she spoke with Wapen
who informed her that she was going to be forced to take FMLA leave as Dyer had
determined that there was non-classroom work available but no safe place in the
classroom. Id. at ¶31. Turner’s complaint also alleges that Cronin aided in
abetted Dyer’s unlawful conduct by falsely telling her that she could take as much
time as she needed with her babies and return when she was able. Id. at ¶31.
Turner also alleges that Cronin suggested she obtain a third doctor’s note
permitting her to work in the classroom and that after she got the letter she was
forced to take FMLA leave. Id. at ¶41. These allegations plausibly allege that
Cronin ratified Dyer’s decision or approved of Dyer’s conduct towards Turner.
At the motion to dismiss stage, the Court is required to accept all factual claims
in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). Based
on these factual allegations, the Court draws the reasonable inference that Colen,

22 

Morin, Cronin and Wapen ratified or endorsed Dyer’s allegedly unlawful conduct
to plausibly state an aiding or abetting claim under Section 46a-60(a)(5). In sum
as there is no individual liability under Section 46a-60(a)(1), Turner’s claims under
this portion of CFEPA are dismissed as against all of the individual defendants.
However, Turner’s Section 46a-60(a)(5) aiding or abetting claims survive.
III.

CTFMLA

Defendants argue Turner’s CTFMLA claim must be dismissed because
Eastconn is not a covered employer under Conn. Gen. Stat. §31-51kk, et seq. The
CTFMLA defines an employer as:
[A] person engaged in any activity, enterprise or business who
employs seventy-five or more employees, and includes any person
who acts, directly or indirectly, in the interest of an employer to any
of the employees of such employer and any successor in interest of
an employer, but shall not include the state, a municipality, a local or
regional board of education, or a private or parochial elementary or
secondary school.
Conn. Gen. Stat. §31-51kk.
Defendants argue that the CTFMLA only applies to private not public employees
and that Turner is essentially a public school teacher exempt from the CTFMLA.
[Dkt. #10, Def. Mem., p.13-14]. Further, the Defendants argue that Eastconn
should be covered under the carve out for employers under the CTFMLA’s
definition because RESCs are created by and controlled by local and regional
boards of education and therefore should be considered a board of education for
purposes of the CTFMLA. Id. at 15-16. In response, Turner argues that Eastconn
does not fall within the carve-out because it identifies itself as a public, nonprofit
agency, which is a regional education service center and not a school. [Dkt. #13,
Pl. Mem., p. 15]. Turner further argues that Eastconn cannot be a board of
23 

education itself because “in order to form a RESC four or more boards of
education must submit a plan” and that any board of education may become a
member of a RESC and withdraw from membership. Id. at 16 (citing Conn. Gen.
Stat. §10-66k).
The issue presented is one of statutory construction and first impression
before the Court. The Connecticut supreme Court recently rearticulated the
standard of statutory construction.
“The process of statutory interpretation involves the determination
of the meaning of the statutory language as applied to the facts of
the case.... When construing a statute, [o]ur fundamental objective is
to ascertain and give effect to the apparent intent of the legislature....
In other words, we seek to determine, in a reasoned manner, the
meaning of the statutory language as applied to the facts of [the]
case.... In seeking to determine that meaning ... [General Statutes] §
1–2z directs us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such text and
considering such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall not be
considered.... When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legislative policy it
was designed to implement, and to its relationship to existing
legislation and common law principles governing the same general
subject matter.... We recognize that terms in a statute are to be
assigned their ordinary meaning, unless context dictates
otherwise....”
State v. Leak, 297 Conn. 524, 532–33, (2010) (Internal quotation marks and
citations omitted.); see also State v. Webster, 308 Conn. 43, 51-52 (2013) (same).
“In construing a statute, we seek to ascertain and give effect to the apparent
intent of the legislature.... [W]e are guided by the principle that the legislature is
always presumed to have created a harmonious and consistent body of law....”

24 

Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 454-55 (1995); Board of
Education of the City of New Haven v. City of New Haven, 237 Conn. 169, 180
(1996) (same).
In examination of the regional educational service center statutory
framework and the CTFMLA reveal that a RESC is an instrumentality of local
boards of education to which the legislature did not intend the CTFMLA to apply.
A regional educational service center is a public educational authority acting on
behalf of the state of Connecticut. Conn. Gen. Stat. § 10-66c. Regional
educational service centers are authorized by state law to be “established by four
or more boards of education for the purpose of cooperative action to furnish
programs and services.” Conn. Gen. Stat. § 10-66a. The General Assembly has
directed the Department of Education to encourage the use of regional
educational service centers as providers of goods and services for local and
regional boards of education.” Conn. Gen. Stat. § 10-66o. The Department of
Education is also authorized to award special consideration to grant applications
that indicate the use of services of regional educational service center. Id. “[T]he
Commissioner of Education may allocate funds to allow regional educational
service centers and state education organizations to provide professional
development services, technical assistance and evaluation activities to local and
regional boards of education, state charter schools, technical high schools,
school readiness providers and other educational entities. Conn. Gen. Stat. § 1066p. As both parties agree, RESCs are created by and controlled by local and
regional boards of educations. The statute defines a RESC as “a body corporate

25 

and politic,” whose board is a “public educational authority acting on behalf of
the State of Connecticut … for the purpose of cooperative action to furnish
programs and services.” Conn. Gen. Stat. §10-66c(a). Local and regional boards
of education have the statutory duties to maintain “good public elementary and
secondary schools, implement the educational interests of the state … and
provide other educational activities in its judgment will best serve the interests of
the school district.” Conn. Gen. Stat. §10-220(a). Most relevant to the issue
presented here is the statute which provides that: “[a]ll state statutes concerning
education … shall apply to the operation of regional educational service centers.”
Conn. Gen. Stat. § 10-66i.
Regional educational service centers are authorized for the express
purposes of achieving synergies in the provision of educational services to
students from its member local school systems. See St. Ledger v. Area Co-op.,
Educ. Servs., 228 F.Supp.2d 66, 71 (D. Conn. 2002). A RESC is a vehicle through
which local boards of education can collaborate to achieve efficiencies of scale,
to eliminate programmatic and staffing redundancies and further their collective
educational mandate of providing quality education. Concluding that a RESC is
not exempt from the CTFMLA would mean that only some state statutes
concerning education apply to the operation of regional educational service
centers, which is contrary to the express language of Connecticut General
Statute section 10-66i. Such a reading is not only inconsistent with the letter of
the law, it is inconsistent with the spirit of the law which is to maximize the value
of state educational expenditures by encouraging local boards of education to

26 

form regional bodies. Subjecting regional bodies to requirements to which local
boards of education are not subject would discourage regionalization, resulting
in the opposite of what the legislature intended when it enacted the RESC act.
Buttressing this conclusion is the broad language of the CTFMLA exemption,
which encompasses all organizations providing direct educational services,
including private schools. The language of the legislation authorizing the
creation of a RESC, its purpose, parentage, the express legislative mandate that
all statutes applying to education apply to a RESC, and the broad exemption from
the CTFMLA of educators, both public and private are indicative of a legislative
intent that a RESC, like the boards of education which create it, are exempt from
the CTFMLA.

IV.

State Personnel Act

Defendants argue that because Turner is not a state employee and her
claim under the State Personnel Act, Conn. Gen. Stat. §5-248a, which pertains to
family and medical leave requirements that apply to state employees, should be
dismissed. Turner argues that RESCs should be considered state agencies and
therefore contends that she is a state employee based on a plain reading of the
RESC statute.3 Tuner points to the statutory language that the “board of a
regional educational service center shall be a public educational authority acting
on behalf of the state of Connecticut” as support for her claim that Eastconn is a
state agency. Conn. Gen. Stat. §10-66c(a). She also points to a statutory

3

 Turner acknowledges that if the Court finds that Eastconn is a state agency and
that she is a state employee than the CTFMLA would not apply to her.  

27 

provision, which provides that a RESC “shall be considered an agency of the
state for purposes of subdivision (14) of subsection (d) of Section 42a-9-109.”
Conn. Gen. Stat. §10-66c(i). Conn. Gen. Stat. §42a-9-109(d)(14) exempts state
agencies from Article 9 of the UCC.
Another court in this district has persuasively held that RESCs are not
state agencies. Bogle-Assegai v. Bigelow, No.3:01cv2367(EBB), 2007 WL
3216393, at *1 (D. Conn. Oct. 25, 2007). In Bogle, the court utilized the factors
the Connecticut Supreme Court employed, in Gordon v. H.N.S. Management Co.,
Inc., 272 Conn. 81 (2004), to come to its conclusion that RESCs are not state
agencies. In Gordon, the Connecticut Supreme Court examined when a private
entity could be considered an arm of the state to raise a sovereign immunity
defense. The Connecticut Supreme Court held that the criteria for determining
whether a corporate entity is an arm of the state entitled to assert sovereign
immunity as a defense are whether:
(1) the state created the entity and expressed an intention in the
enabling legislation that the entity be treated as a state agency; (2)
the entity was created for a public purpose or to carry out a function
integral to state government; (3) the entity is financially dependent
on the state; (4) the entity's officers, directors or trustees are state
functionaries; (5) the entity is operated by state employees; (6) the
state has the right to control the entity; (7) the entity's budget,
expenditures and appropriations are closely monitored by the state;
and (8) a judgment against the entity would have the same effect as a
judgment against the state…All relevant factors are to be considered
cumulatively, with no single factor being essential or conclusive.
272 Conn. at 98-101. Although the Connecticut Supreme Court examined whether
a private management company that contracted with the state to operate public
transportation services was an arm of the state, the Court finds that the use of

28 

these factors to examine whether a RESC is an arm of the state is appropriate as
the Gordon court drew from past precedent examining whether public benefits
corporations governed by state law could be considered an arm of the state. Id. at
96 (citing Dolnack v. Metro-North Commuter Railroad Co., 33 Conn. App. 832
(1994). In addition, the Gordon Court also drew from the “criteria that this court
has identified for determining whether a hybrid public-private entity is a public
agency for purposes of subjecting it to General Statutes § 1–210, the Freedom of
Information Act (FOIA).” Id. at 96. The Court therefore finds that the Gordon
factors are appropriately applied to a corporate body like a RESC to determine
whether it is an arm of the state.
Applying the Gordon factors, the Bogle court concluded that a RESC is “a
body corporate and politic created by local boards of education, not by the state.
The members of RESC boards are selected by local boards of education. The
employees are RESCs are not state employees, and the state does not participate
in the hiring or termination of RESC employees.” Bogle, 2007 3216393, at *1
(internal quotation marks and citations omitted). In addition, “RESCs are not
financially dependent on the state, as their primary source of funding for RESCs
comes from the local districts by which they are formed, not the state. “ Id.
(citing § 10-66e (stating that “the necessary administrative and overhead
expenditures as determined by the board of the regional educational service
center shall be shared jointly by the participating boards of education”)). Lastly,
the Bogle court emphasized that “although RESCs may issue bonds, the bonds
‘shall not be obligations of the state of Connecticut or any municipality, and each

29 

such bond, note or other obligation shall so state on its face.’” Id. (quoting § 1066c(c)). This Court agrees with the Bogle’s court’s analysis that an examination
of the entire structure of the RESC act does not support a conclusion that RESCs
were intended to be construed as state agencies. Although the boards of RESCs
“act on behalf of the state of Connecticut” so do local or regional boards of
education. Statutorily each local or regional board of education is mandated to
“implement the educational interests of the state.” Conn. Gen. Stat. §10-220. The
state does not have the authority to control the RESC. Conn. Gen. Stat. §10-66b.
Member boards may withdraw from the RESC as long as they fulfill their financial
obligation to the purchasers of debt issued by the RESC during the time they
were participants. Conn. Gen. Stat. §10-66k. Further, the RESC’s budget,
expenditures and appropriations are not closely monitored by the state; although
the RESC must submit its budget and its evaluation of programs and services
annually to its constituent town boards of educations and the State Board of
Education, the State shall not evaluate the RESCs more than once every five
years. Conn. Gen. Stat. §§10-66g,h.
Turner also points to one District of Connecticut case and one Connecticut
superior court decision in support of her proposition that a RESC is a state
agency. In St. Ledger v. Area Co-op., Educ. Servs., 228 F.Supp.2d 66 (D. Conn.
2002), another court in this district held that for purposes of 42 U.S.C. §1983, a
RESC was a state actor, which could be held liable for a First Amendment
constitutional violation. Turner’s reliance on St. Ledger is misplaced as this case
is distinguishable. The St. Ledger court did not examine whether a RESC was a

30 

state agency but simply held that a RESC’s conduct could be considered state
action subjecting a RESC to liability for constitutional torts. It is well-established
that non-state employees such as local police officers and even employees of
wholly private entities can be regarded as state actors for purposes of liability
under 42 U.S.C. §1983. See Fabrikant v. French, 691 F.3d 193, 206-07 (2d Cir.
2012) (“[S]tate action requires both an alleged constitutional deprivation caused
by the exercise of some right or privilege created by the State or by a rule of
conduct imposed by the State or by a person for whom the State is responsible,
and that ‘the party charged with the deprivation must be a person who may fairly
be said to be a state actor. Conduct that is formally ‘private’ may become so
entwined with governmental policies or so impregnated with a governmental
character that it can be regarded as governmental action.”) (internal quotation
marks and citations omitted). The state action requirement may be satisfied
despite the fact that a wholly private or local governmental entity or officer was
involved in the constitutional tort. However, that would not convert the wholly
private or local governmental entity into a state agency with state employees.
Turner also points to the superior court’s decision in Sanchez v. Capital
Regional Educ. Council, No.CV000598554, 2001 WL 420475, at *2-3 (Conn. Super.
Ct. April 6, 2001) in which it held that a RESC is s state actor shielded by
sovereign immunity.4 The Sanchez court concluded that a RESC is a state actor

4

 To the extent that Turner is relying on Sanchez’s holding that would mean that
Eastconn would be entitled to the protection of sovereign immunity as an arm of
the state which would result in the majority of her claims with the exception of
her federal employment discrimination claims being barred by the Eleventh
Amendment. See 184 Windsor Ave., LLC v. State, 274 Conn. 302, 309-10 (2005)

31 

because its board is authorized to act on behalf of the State of Connecticut under
the statute. For the reasons discussed above, the Court is not persuaded this
language in the statute should be construed to mean that a RESC is a state
agency with state employees. To the extent that this language is ambiguous as
to whether a RESC is a state agency, any such ambiguity is overcome by the
unambiguous statutory provision forbidding RESCs to issue bonds, which are
the obligations of the State of Connecticut.
Lastly, the Plaintiff implies that a RESC may be considered a state agency
with state employees for the limited purpose of the State Personnel Act because
the statute provides that a RESC is a state agency for the limited purpose of
exempted it from Article 9 of the UCC. However absent an affirmative statutory
provision expressly providing that a RESC is a state agency for such a limited
purpose, there is no basis in the statute to assume that the State Personnel Act
applies to a RESC. For all the above reasons, the Court dismisses Tuner’s
State Personnel Act claim under Conn. Gen. Stat. §5-248a.
IV.

Contract and Tort Claims

Defendants argue that the Court lacks subject matter jurisdiction over all of
Turner’s contract and tort claims because she failed to exhaust the administrative

(holding that plaintiff could not bring breach of contract action against state
absent authorization from the claims commissioner under Conn. Gen. Stat. §4142); Coger v. Connecticut, 309 F.Supp.2d 274, 282 (D. Conn. 2004) (This court
has previously held that, while plaintiff may bring a suit to redress violations of
CFEPA in Connecticut State Superior Court, as provided in Conn. Gen.Stat. §
46a–99, that provision does not provide plaintiff with the right to sue the State of
Connecticut in federal court.”); Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2011)
(holding that Congress did not have the authority to abrogate the sovereign
immunity on claims arising under the relevant FMLA provision).
32 

remedies provided in the CBA. “‘It is well settled under both federal and state law
that, before resort to the courts is allowed, an employee must at least attempt to
exhaust exclusive grievance and arbitration procedures, such as those contained
in the collective bargaining agreement between the defendant and the plaintiffs'
union.... Failure to exhaust the grievance procedures deprives the court of
subject matter jurisdiction.’” Gerlach v. City of Danbury, No. 3:09-cv-1950(JCH),
2012 WL 1032796, at *10 (D. Conn. Mar. 27, 2012) (quoting Saccardi v. Bd. of
Educ. of the City of Stamford, 45 Conn.App. 713, 715-16 (Conn. App. Ct. 1997)).
The Connecticut Supreme Court has explained that the in the context of the
collective bargaining agreement, “[t]he purpose of the exhaustion requirement is
to encourage the use of grievance procedures, rather than the courts, for settling
disputes. A contrary rule which would permit an individual employee to
completely sidestep available grievance procedures in favor of a lawsuit has little
to commend it.... [I]t would deprive employer and union of the ability to establish
a uniform and exclusive method for orderly settlement of employee grievances. If
a grievance procedure cannot be made exclusive, it loses much of its desirability
as a method of settlement. A rule creating such a situation would inevitably
exert a disruptive influence upon both the negotiation and administration of
collective agreements.” Labbe v. Pension Commission, 229 Conn. 801, 811-12
(1994) (internal quotation marks and citations omitted). Nevertheless, the
Connecticut Supreme Court has “grudgingly carved several exceptions from the
exhaustion doctrine ... including one where the administrative remedy is
inadequate or futile.” Id. at 812 (internal quotation marks and citations omitted).

33 

Turner argues that she was not required to exhaust the CBA grievance
procedures because of futility. Turner contends that it would have been futile for
her to challenge the Defendants’ decision “with respect to the leave forced upon
her too early and her requests to extend that leave so as not to be terminated.”
[Dkt. #13, Pl. Mem., p. 21]. She also argues that because her union did not get
involved, “it is unreasonable to have expected Tuner to continue to seek their
assistance and for the union to take a contrary position to its tacit approval of
Defendant’s conduct.” Id. at 22. Turner stresses that there is futility because her
requests for assistance from the union went unheeded and that she attempted to
get the help of “every available supervisor at every turning point in this matter”
and each request was denied.” Id.    

The futility exception “is to be applied infrequently, and only for narrowly

defined purposes.” Gerlach, 2012 WL 1032796, at *11 (citing Neiman v. Yale
Univ., 270 Conn. 244, 258-59 (2004)). “Courts have found that utilizing
administrative procedures is not futile even where the decision maker has
indicated that it will rule against the grievant, or where the likelihood of an
adverse decision exists, so long as the possibility exists that the grievance
procedures may provide the plaintiff with the desired relief.” Id. (citation
omitted). “The mere possibility, or even likelihood, of an adverse decision does
not render a remedy futile.” Neiman, 270 Conn. at 260; see also Sobczak v. Board
of Educ. of City of Meriden, 88 Conn.App.99, 107 (2005) (“the plaintiff's contention
that it necessarily would be unavailing to file a grievance pursuant to levels one
through three is purely speculative.”). Turner essentially argues that futility

34 

exists because the supervisors she reached out to indicated that they would rule
against her. However, such a reason is not sufficient to establish futility
particularly here where the CBA grievance procedures included binding
arbitration before a neutral third party arbiter. In particular, this provision for
arbitration demonstrates that the grievance procedure may have provided Turner
with her desired relief and therefore was not futile.
Turner’s argument that the grievance procedure was futile and inadequate
because her union failed to support her is likewise unpersuasive in view of the
fact that the CBA did not require that the union bring the grievance but merely
provided that a grievant may be represented by the union at any level of the
grievance procedure. [Dkt. # 10, Attachment A, CBA, Art 2.E.2] (emphasis
added).5 The Connecticut appellate court argument rejected an identical
argument finding a grievance procedure was not futile and inadequate where a
union president refused to file a grievance as requested by the plaintiff because
the “plaintiff remained free to pursue his grievance.” Sobczak, 88 Conn.App. at
107. The Sobczak court concluded that the “plaintiff, therefore, was expressly
permitted to initiate a grievance either on his own or with the assistance of a
representative other than the union at levels one through three of the grievance

5

Notably had the CBA required the Union to initiate the grievance proceeding,
Turner would have had to bring a claim against her union for breach of its duty of
fair representation prior to seeking judicial review. See Gerlach, 2012 WL
1032796, at *10 ( “Where a CBA specifies that the Union shall be the exclusive
representative to bring a grievance to arbitration, an employee has no further
remedy unless the employee can demonstrate that the Union breached its duty of
fair representation by acting arbitrarily, maliciously, or in bad faith. An employee
must bring such a claim against the Union before the board of labor relations
prior to seeking judicial review from the courts.”) (citations omitted). 
35 

procedure. It is undisputed that he failed to do so.” Id. As in Sobczak, Turner
was permitted to initiative a grievance on her own with or without the assistance
of her union and she has admittedly failed to do so.
Turner conclusorily states that the CBA grievance procedures would not
have adequately protected her or provided her reasonable remedies. [Dkt. #13,
Pl. Mem., p.22]. However, Tuner fails to elucidate exactly why the CBA
procedures were deficient or how the administrative remedies available under the
grievance procedures would be inadequate. It is well established that “Unions
and their employers have broad contractual authority to provide administrative
remedies for disputes arising out of the employment relationship. That authority
encompasses issues of law as well as of fact.” Sobczak, 88 Conn.App. at 105
(internal quotation marks and citations omitted). It is further well established
that “[t]he plaintiff's preference for a particular remedy does not determine the
adequacy of that remedy. [A]n administrative remedy, in order to be adequate,
need not comport with the [plaintiff's] opinion of what a perfect remedy would
be.” BRT General Corp. v. Water Pollution Control Authority, 265 Conn. 114, 1224, (2003) (internal quotation marks and citations omitted). Here, Turner doesn’t
even identify what her perfect remedy would be and instead just states that the
remedies are inadequate which is insufficient to excuse the exhaustion
requirements.
Turner also argues that Cronin’s promise that she could have time to be
with her babies was intended to influence her into not raising any grievance or
other administrative remedy. [Dkt. #13, Pl. Mem. p. 22-23]. However, at the time

36 

that Turner was informed that she was being terminated and thus learned that
Cronin’s alleged promise was not being fulfilled, she had the ability to initiate a
grievance but failed to do so.
Lastly, Turner argues that she did in effect exhaust her administrative
remedies by reaching out to the various supervisors to no luck prior to initiating
CHRO proceedings. This argument is flawed in several respects. First, Turner’s
informal reaching out to various supervisors is not equivalent to the formal
grievance procedures outlined in the CBA because those procedures call for
formal written determinations and provide for appeal to the Board of Eastconn
and then binding arbitration before a neutral third party arbiter. Consequently,
Turner’s reaching out to Morin, Cronin, Wapen and Colen regarding her
“grievance” was not equivalent to pursuing the grievance procedures outlined in
the CBA. Second, the CHRO process is not a grievance process, but rather a
process which only had authority over Turner’s allegations of employment
discrimination in violation of federal and state employment discrimination laws
and not over her contract or tort law based claims at issue. See Conn. Gen. Stat.
§46a-56 (providing that the CHRO’s duties include investigating the “possibilities
of affording equal opportunity of profitable employment to all persons;”
compiling “facts concerning discrimination in employment;” and investigating
“all cases of discriminatory practices”). Therefore the fact that she proceeded
before the CHRO is irrelevant with respect to her state law contract and tort
claims. For all the above reasons, the Court finds that it would not have been

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futile or inadequate for Turner to have exhausted her administrative remedies
under the CBA.
Turner argues that even if the Court does not find it was futile for her to
exhaust her administrative remedies that not all of her claims are subject to
dismissal as not all of her claims involve a violation of a specific term of the CBA
such as her negligent supervision and her misrepresentation, fraud, and
promissory estoppel claims premised on Cronin’s alleged promise. [Dkt. #13, Pl.
Mem. p. 13]. “In determining whether a tort claim is subject to the grievance
procedures of a collective bargaining agreement, the critical inquiry, therefore, is
whether the tortious conduct is encompassed by the terms of the agreement.”
Sobczak, 88 Conn.App. at 109. A “plaintiff may not choose [his] administrative
remedy through the framing of [his] complaint. If that were possible, the purpose
of the exhaustion doctrine would be thwarted.” Saccardi, 45 Conn.App. at 718
(internal quotation marks and citations omitted).
Here, Turner’s Counts 7 and 8 claims for breach of contract and breach of
the covenant of good faith involve a term of the agreement and are therefore
subject to the grievance procedures of the CBA. The Court therefore lacks
subject matter jurisdiction over Counts 7 and 8 and dismisses them. With
respect to Turner’s Counts 9 and 10 claims for breach of oral contract, the Court
finds that these claims are also subject to the grievance procedures. Turner
argues that Cronin’s oral promise that she could take as much time with her
babies constituted an oral contract. Assuming that Cronin’s promise was an
“oral contract,” it would have to have been in effect an amendment to the CBA.

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The authority to amend the CBA is governed by Article 34 and if the promise did
so amend the CBA, the promise itself would be a term of the CBA and therefore
subject to the grievance procedures and dismissal. Further, it appears that
Cronin’s alleged “promise” reflects Cronin’s interpretation of the CBA’s
provisions regarding pregnancy leave and therefore did not amend the CBA or
create an entirely new oral contract. As Cronin’s “promise” reflected his
understanding of the terms of the CBA such claims would be encompassed by
the terms of the agreement and therefore subject to the grievance procedures.
Moreover the CBA broadly provided that Eastconn held the sole and
unquestioned right to direct its operation in all its aspects, which included its
right to transfer, layoff, or discharge an employee, to control, supervise and
manage the operations of EASTCONN and its professional staff as well as
whether to grant pregnancy or any other kind of leave,. [Dkt. # 10, Attachment A,
CBA, Art. 1.B.6,7, and 13; Art. 13 and 15]. As Turner’s Counts 9 and 10 claims are
premised on Eastconn’s conduct in failing to give Turner additional leave and
their decision to terminate her in contravention of Cronin’s oral statements it is
clearly encompassed by the terms of the CBA. The Court therefore lacks subject
matter jurisdiction over Turner’s Counts 9 and 10 and dismisses them.
Even if the Court had subject matter jurisdiction over Turner’s Counts 9
and 10 claims, the Court would dismiss those counts for failure to state a claim.
Plaintiffs’ allegations that Cronin’s oral promise constituted an oral contract are
not plausible. First, a contractual promise cannot be created by plucking phrases
out of context; there must be a meeting of the minds between the parties. “In

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order to support contractual liability, the defendants' representations must be
sufficiently definite to manifest a present intention on the part of the defendants
to undertake immediate contractual obligations to the plaintiff.” Burnham v. Karl
and Gelb, P.C., 50 Conn.App. 385, 389 (1998) (internal quotation marks and
citations omitted). Turner fails to plead facts to show that Cronin had authority to
amend the CBA or that his promise was sufficiently definite to manifest an
intention on the part of Eastconn to undertake the immediate contractual
obligation to allow Cronin to take any amount of time she requested.
For similar reasons, Turner’s Count 11 claim for promissory estoppel
based on Cronin’s alleged promise is dismissed. As discussed above, Cronin’s
“promise” appears to relate to his understanding of the CBA’s provision for
pregnancy leave and therefore Turner’s promissory estoppel claim is
encompassed by the terms of the agreement. Further, this claim is also
encompassed by the terms of the CBA, which provided Eastconn the sole right to
direct its operations including terminating employees and granting leave.
Turner’s claim that Eastconn should be estopped from refusing her leave and
terminating her because Cronin promised her as much time as she needed is
incident to Eastconn’s right to run its operations, grant leave, and terminate an
employee as provided in the CBA. The Court therefore lacks subject matter
jurisdiction over Turner’s Count 11 claim and dismisses it.
Likewise Turner’s Counts 14, 15, and 16 for negligent supervision are
encompassed by the terms of the CBA. The CBA provided that Eastconn had the
right, responsibility and prerogative to direct its operations including “[i]n

40 

general, to control, supervise, manage the operations of EASTCONN and its
professional staff.” [Dkt. # 10, Attachment A, CBA, Art. 1.B.13]. Turner’s claims
for negligent supervision fall squarely within this term of the CBA and are
likewise subject to the grievance procedure. The Court therefore lacks subject
matter jurisdiction over Turner’s Counts 14, 15, and 16 claims and dismisses
them.
Lastly, Turner’s Count 17 and 18 claims for negligent and intentional
infliction of emotional distress are also encompassed by the terms of the CBA as
her emotional distress claims are predicated on Defendants’ conduct when they
denied her additional leave, allegedly failed to provide her with accommodations,
and terminated her. As discussed above the CBA provided that Eastconn had
the right to “control, supervise and manage the operations of EASTCONN and its
professional staff under governing laws” including its right to “… [t]o discharge
or otherwise discipline any employee” and “[t]o promote, transfer, and lay off
employees. .” [Dkt. # 10, Attachment A, CBA, Art. 1.B]. The tortious conduct that
underlies her negligent and intentional infliction of emotional distress claims is
clearly encompassed by these terms of the CBA. See Peluso v. Town of
Greenwich, No.FSTCV226011270S, 2012 WL 6846546, at *9 (Conn. Super. Ct. Dec.
14, 2012) (holding that emotional distress claim subject to exhaustion
requirement as the tortious conduct fit the definition of a grievance as relating to
conditions of employment and noting that the “fact that the plaintiff has couched
his various complaints as common-law tort claims does not change this result.”)

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As the Court lacks subject matter jurisdiction over Turner’s Counts 17 and 18
claim, such claims are dismissed.

Conclusion
Based upon the above reasoning, Defendants’ [Dkt. #10] motion to dismiss
is DENIED IN PART and GRANTED IN PART. The Court dismisses Plaintiff’s Title
VII and CFEPA claims based on familial status and gender apart from pregnancy;
her CTFMLA claim under Conn. Gen. Stat. §31-51kk ; her Title VII and general
CFEPA claims under Conn. Gen. Stat. §46a-60(a)(1) against all the individual
defendants; her State Personnel Act claim, and her contract and tort law claims in
Counts 7-18. 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: March 15, 2013

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