Miller v. Bridgeport Bd of Ed et al
ORDER denying 24 Motion to Dismiss. See the attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 3/19/14. (Ives, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BRIDGEPORT BOARD OF EDUCATION
and MARK ANASTASI,
CIVIL ACTION NO.
March 19, 2014
MEMORANDUM OF DECISION DENYING DEFENDANTS’ (SECOND) MOTION TO
DISMISS [Dkt. #24]
Introduction and Factual Background
Plaintiff Josephine Miller (“Miller”), an African-American attorney licensed
in Connecticut, brings this action for racial discrimination in the making and
enforcement of contracts under 42 U.S.C § 1981 against Defendants Bridgeport
Board of Education (the “Board”) and Mark Anastasi (“Anastasi”), the City
Attorney for the City of Bridgeport, in his official and individual capacities.
On November 30, 2012 the Defendants moved to dismiss the Plaintiff’s
complaint, and the Court granted the motion on July 30, 2013, allowing the
Plaintiff leave to replead. Miller timely filed an Amended Complaint. The
Defendants have again moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief may be granted, alleging that the Plaintiff
has not cured the deficiencies articulated in the Court’s ruling on the first motion
to dismiss. For the reasons that follow, Defendants’ Motion to Dismiss is
Standard of Review
“‘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.’” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual
allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citations and 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 (2007)). “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, 556
U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “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, 556 U.S. at 678 (internal
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) “is 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 by reference.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007). 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 Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Patrowicz v. Transamerica
HomeFirst, Inc., 359 F. Supp. 2d 140, 144 (D. Conn. 2005) (MRK).
Plaintiff alleges two counts of discrimination in the making and
enforcement of contracts under 42 U.S.C. § 1981. Defendants contend that
Plaintiff’s complaint must fail because she has again failed to plead particularized
facts sufficient to establish that the Defendants engaged in any discriminatory
conduct or had an intent to discriminate against her on the basis of race, or that
the alleged discrimination concerned the making or enforcing of a contract
cognizable under § 1981. Miller counters that she has added sufficient factual
content to her complaint to meet the pleading standard.
a. Discrimination in the Making or Enforcement of Contracts
42 U.S.C. § 1981 provides in relevant part that “[a]ll persons within the
jurisdiction of the United States shall have the same right in every state and
Territory to make and enforce contracts . . . as is enjoyed by white citizens.” 42
U.S.C. § 1981(a). To successfully plead a § 1981 claim, a plaintiff must show: “(1)
that she is a member of a racial minority; (2) an intent to discriminate on the basis
of race by the defendant; and (3) that the discrimination concerned one or more
of the activities enumerated in § 1981.” Broich v. Inc. Vill. of Southampton, 462 F.
App’x 39, 41-42 (2d Cir. 2012) cert. denied, 133 S. Ct. 527 (2012) (quoting Lauture
v. Int’l Bus. Machines Corp., 216 F.3d 258, 261 (2d Cir. 2000)); see also Morris v.
Yale Univ. Sch. of Med., 477 F. Supp. 2d 450, 458 (D. Conn. 2007) (same). Here,
the Plaintiff has established the first element of her § 1981 claim as it is not
disputed that she is a member of a racial minority.
“Essential to an action under Section 1981 are allegations that the
defendants’ acts were purposefully discriminatory and racially motivated.” Albert
v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988); see also Gen. Bldg. Contractors
Ass’n, Inc. v. Penn., 458 U.S. 375, 391 (1982) (section 1981 can be violated only by
purposeful discrimination). “In order to survive a motion to dismiss, the plaintiff
must specifically allege the events claimed to constitute intentional
discrimination as well as circumstances giving rise to a plausible inference of
racially discriminatory intent.” Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir.
1994); Timmons v. City of Hartford, 283 F. Supp. 2d 712, 717 (D. Conn. 2003)
(AWT) (quoting same); Evans-Gadsden v. Bernstein Litowitz Berger & Grossman,
LLP, 332 F. Supp. 2d 592, 596 (S.D.N.Y. 2004) (same). “[A] complaint consisting
of nothing more than naked assertions, and setting forth no facts upon which a
court could find a violation of the Civil Rights Acts, fails to state a claim under
Rule 12(b)(6).” Yusuf, 35 F.3d at 713 (citing Martin v. N.Y. State Dep't of Mental
Hygiene, 588 F.2d 371, 372 (2d Cir. 1978)); Timmons, 283 F. Supp. at 717 (same);
Evans-Gadsden, 332 F. Supp. 2d at 596.
As to the third element of Plaintiff’s § 1981 claim, the statute prohibits
intentional racial discrimination which affects “the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. §
1981(b). Thus, any claim brought under § 1981 for discrimination in the making
or enforcement of contracts “must initially identify an impaired contractual
relationship . . . under which the plaintiff has rights.” Domino's Pizza, Inc. v.
McDonald, 546 U.S. 470, 476 (2006). “Absent the requirement that the plaintiff
himself must have rights under the contractual relationship, § 1981 would
become a strange remedial provision designed to fight racial animus in all of its
noxious forms, but only if the animus and the hurt it produced were somehow
connected to somebody's contract. [The Supreme Court has] never read the
statute in this unbounded—or rather, peculiarly bounded—way.” Id.
The term “contract” pursuant to § 1981 adopts its ordinary common law
meaning. Lauture, 216 F.3d at 261 (“In drafting § 1981, Congress did not seek to
promulgate some specialized federal definition of contract law, but merely
intended the term ‘contract’ to have its ordinary meaning.”); see also U.S. v.
Shabani, 513 U.S. 10, 13 (1994) (upholding “settled principle of statutory
construction that, absent contrary indications, Congress intends to adopt the
common law definition of statutory terms”). Under Connecticut law, “in order to
form a contract, generally there must be a bargain in which there is a
manifestation of mutual assent to the exchange between two or more parties”
whose identities are “reasonably certain.” Ubysz v. DiPietro, 185 Conn. 47, 51,
(Conn. 1981); see also Bender v. Bender, 292 Conn. 696, 728 (Conn. 2009)
(substantially same). In other words, there must be a meeting of the minds: “the
court must find that the parties’ minds had truly met…if there has been a
misunderstanding between the parties, or a misapprehension by one or both so
that their minds have never met, no contract has been entered into by them and
the court will not make for them a contract which they did not themselves make.”
Tsionis v. Martens, 116 Conn. App. 568, 577 (Conn. App. Ct. 2009) (internal
A contract may be express or implied. Janusauskas v. Fichman, 264 Conn.
796, 804 (Conn. 2003). “An implied in fact contract is the same as an express
contract, except that assent is not expressed in words, but is implied from the
conduct of the parties.” Id. at 573-74. A contract implied in fact is “founded upon
a meeting of minds, which, although not embodied in an express contract is
inferred, as a fact, from conduct of the parties showing, in light of the
surrounding circumstances, their tacit understanding.” Hercules Inc. v. U.S., 516
U.S. 417, 424 (1996) (quoting Baltimore & Ohio R.R. Co v. U.S., 261 U.S. 592, 597
(1923)). An implied in fact contract arises “where a plaintiff, without being
requested to do so, renders services under circumstances indicating that he
expects to be paid therefor, and the defendant, knowing such circumstances,
avails himself of the benefit of those services.” Janusauskas, 264 Conn. at 80405. “The parties’ intentions manifested by their acts and words are essential to
the court’s determination of whether a contract was entered into and what its
terms were.” Auto Glass Exp., Inc. v. Hanover Ins. Co., 293 Conn. 218, 225 (Conn.
2009). Silence may constitute assent to an offer of contract if an offeree, by his
words or conduct, leads the offeror to reasonably interpret that silence as such.
John J. Brennan Const. Corp. v. City of Shelton, 187 Conn. 695, 710 (Conn. 1982).
“Whether such conduct took place so as to create a contract is a question of
fact.” Sandella v. Dick Corp., 53 Conn. App. 213, 220 (Conn. App. Ct. 1999)
(quoting John J. Brennan Construction Corp., Inc., 187 Conn. at 710). Courts are
reluctant to enforce implied contracts in the public sector, as doing so “would
invite endless litigation on the basis of misinformation by employees, thereby
drawing down the public fisc.” Biello v. Town of Watertown, 109 Conn. App. 572,
583 (Conn. App. Ct. 2008) (holding that representations by municipal employees
not made in writing are of particularly little value in proving existence of implied
The Plaintiff has pled marginally sufficient additional facts to sustain her §
1981 claim. Miller alleges that Mr. Cimmino, the Board of Education employee on
whose behalf Miller alleges she has not been paid, originally “selected Attorney
Matthew Hirsch, a Caucasian male, as his attorney” in that action because of an
“acknowledged conflict of interest prohibiting his representation by the same
attorney representing the Defendant Board of Education.” [Dkt. 23, Am. Compl.
¶¶6-7]. Cimmino was encouraged to select his own attorney because of this
acknowledged conflict of interest, and Defendants permitted Hirsch to represent
Cimmino “without further question.” [Id. at ¶¶8, 41]. The Board of Education
compensated Hirsch for his representation of Cimmino, paying him directly, and
at no time required “Cimmino to first incur legal fees and expenses before he
received reimbursement for said legal fees and expenses.” [Id. at ¶¶9, 13-14].
In January 2010 Miller informed Anastasi of an “agreement between her
and Cimmino to assume his defense in the federal court action,” at Cimmino’s
request. [Id. at ¶¶16-17]. Miller inquired of Anastasi “what, if any, conditions
existed regarding the city’s payment for the legal services to be rendered by her
on Cimmino’s behalf.” Anastasi “failed and refused to respond to Plaintiff’s
inquiry” and has since “made no effort to dissuade Plaintiff from assuming the
duties pursuant to her agreement to represent Cimmino.” [Id. at ¶¶18-20]. In
February 2012 Miller entered an appearance on Cimmino’s behalf and apprised
Anastasi in writing. [Id. at ¶¶16, 22]. Miller alleges that Anastasi has also
“refused to provide any information to Plaintiff regarding any scope of
representation letters or letter agreements for attorneys who perform legal
services for city employees under Conn. Gen. Stat. §7-101a.” [Id. at ¶26]. Despite
having submitted invoices for her representation of Cimmino, which Miller claims
to be of the same type as that provided by Hirsch, the Board of Education has not
paid her. [Id. at ¶¶30, 34].
Miller further alleges that Defendants have “no African-American attorneys
who perform legal services for it [sic] pursuant to Conn. Gen. Stat. § 7-101a,” as
demonstrated by the Board’s records. [Id. at ¶¶45-46]. Miller alleges that the
Defendant Board of Education and Anastasi “maintained a policy, practice, and
custom of engaging only non-African-American attorneys and law firms to
perform legal services.” [Id. at ¶¶44].
The Plaintiff has by a very slim margin met the second prong of her § 1981
claim as she has specifically alleged that the Defendants unquestioningly allowed
Cimmino to choose a Caucasian attorney – Hirsch – to represent him, and then
paid him directly for his services, while the Defendants refused to acknowledge
Cimmino’s choice of Miller, an African-American attorney, or her representation
of him, and have refused to pay her directly for her legal services. These
allegations, coupled with the alleged lack of any African-American attorneys
providing services to the Board of Education pursuant to Conn. Gen. Stat. § 7101a, and the absence of any reference by the Defendants to any public
documents or regulations governing retention of or payment to private attorneys
for services rendered, are marginally sufficient at the pleading stage to allege
discrimination based on Miller’s race.1
The Plaintiff has also marginally alleged that this discrimination has
affected her right to make or enforce contracts. Miller has specifically alleged
that, despite that she has performed the same type of legal services as did Hirsch
The Court notes that the Plaintiff has essentially admitted in the Proposed
Second Amended Complaint attached as an exhibit to her pending Motion to
Amend/Correct the Amended Complaint (dkt. 31) that she represents clients in
lawsuits against the City of Bridgeport and therefore may have a conflict of
interest which would justify the City’s unwillingness to allow her to represent
and that both have specialties in employment law, the Board of Education
unquestioningly allowed Hirsch to represent Cimmino and paid him directly for
his services, but has refused to afford the same privilege to Miller. The Plaintiff
has successfully alleged that, while a Caucasian attorney was party to an implied
or express contract to be paid directly for his legal services in representing
Cimmino, the Board of Education has refused to extend to the Plaintiff this same
contractual right to payment for legal services rendered. She has also alleged
that she reasonably relied on the Board’s “unquestioning payment to Attorney
Hirsch for his rendition of the same legal services to Cimmino” in interpreting
Anastasi’s silence as assent to payment for her legal services. [Dkt. 23, Am.
Compl. ¶25]. Lastly, Miller has alleged that Anastasi is the “chief legal officer for
the City of Bridgeport and is authorized to approve or disapprove contracts for
legal services between the City, its constituent agencies such as the Board of
Education and members of the public.” [Id. at ¶3]. Thus, the Plaintiff has added
sufficient factual content to marginally allege that her right to make a contract for
payment with the Board of Education, or to enforce an implied contract for
payment with the Board of Education, has been compromised.
b. Municipal Liability
Miller’s claim for municipal liability also succeeds. “[W]hen the defendant
sued for discrimination under § 1981 or § 1983 is a municipality - or an individual
sued in his official capacity - the plaintiff is required to show that the challenged
acts were performed pursuant to a municipal policy or custom.” Patterson v.
Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (internal citations omitted).
To show a policy, custom, or practice, the plaintiff need
not identify an express rule or regulation. It is sufficient
to show, for example, that a discriminatory practice of
municipal officials was so persistent or widespread as
to constitute a custom or usage with the force of law, or
that a discriminatory practice of subordinate employees
was so manifest as to imply the constructive
acquiescence of senior policy-making officials. A
policy, custom, or practice may also be inferred where
the municipality so failed to train its employees as to
display a deliberate indifference to the constitutional
rights of those within its jurisdiction.
Id. (internal citations and quotation marks omitted).
The Plaintiff has brought this action against Anastasi in his official capacity
and against the Board of Education, both proxies for the City of Bridgeport itself.
She has successfully alleged that the Board paid Hirsch, Cimmino’s Caucasian
attorney, for his representation of Cimmino while not paying Miller for
substantially similar, if not identical, legal services, and has pled a bare-bones
racial discrimination claim pursuant to 42 U.S.C. § 1981. Miller has also alleged
that the Defendants have “no African-American attorneys who perform legal
services for it [sic] pursuant to Conn. Gen. Stat. § 7-101a,” as demonstrated by
the Board’s records, and that the Defendant Board of Education and Anastasi
“maintained a policy, practice, and custom of engaging only non-AfricanAmerican attorneys and law firms to perform legal services.” Although scant,
this additional factual content puts Plaintiff’s Amended Complaint just above the
pleading standard bar. Her municipal liability claim survives.
For the foregoing reasons, Plaintiff’s 42 U.S.C. § 1981 claims for racial
discrimination in the making or enforcement of contracts and municipal liability
survive and the Defendants’ Motion to Dismiss [Dkt. 23] is DENIED. The Court
reminds the parties that the Scheduling Order articulated at docket entry 28
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 19, 2014
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