Bakhit et al v. Safety Markings, Inc. et al
RULING GRANTING in part and DENYING in part 21 Motion to Dismiss The court dismisses both plaintiffs common-law claims for negligent infliction of emotional distress (Counts VII and VIII) and Bakhits retaliation claim arising under section 1981 (p art of Counts I and II). Furthermore, as the parties agree that the plaintiffs have stated no claims for relief under section 1981a, the court dismisses such claims as well.The plaintiffs are directed to file an Amended Complaint within 21 days from the date of this Rulings entry. Signed by Judge Janet C. Hall on 6/23/2014. (Malone, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
YOSIF BAKHIT and KIYADA MILES,
SAFETY MARKINGS, INC., MARK
KELLY, RAY VEZINA, PHIL
BRININGER, JAMES CODY, JEFF
PERRA, and TOM HANRAHAN,
CIVIL ACTION NO.
JUNE 23, 2014
RULING RE: DEFENDANTS’ MOTION TO DISMISS (Doc. No. 21)
Plaintiffs Yosif Bakhit and Kiyada Miles bring this action against their former
employer, defendant corporation Safety Markings, Inc. (“Safety Markings”), and
individual defendants Mark Kelly (president of Safety Markings), Ray Vezina (foreman),
Phil Brininger (foreman), James Cody (superintendent), Jeff Perra (foreman), and Tom
Hanrahan (lead foreman) (collectively, “the defendants”).1 The Complaint claims that
Safety Markings and the individuals named are each liable to each of the plaintiffs for
the torts of intentional infliction of emotional distress and negligent infliction of
emotional distress. See Complaint (“Compl.”) (Doc. No. 1) at 18–19. It also claims
that the defendants discriminated against the plaintiffs on the basis of race in violation
The court notes that the caption in the plaintiffs’ Opposition to the defendants’ Motion to Dismiss
(Doc. No. 26) names different defendants from those listed on the Complaint (Doc. No. 1) and in other
filings, apparently substituting the name “Ray Velez” for “Ray Vezina” and omitting “Tom Hanrahan”
entirely. The court assumes that at present the parties remain the same as those originally named in the
of 42 U.S.C. § 1981. See id. at 16–18. The defendants filed a Motion to Dismiss
parts of Count I and the entirety of Counts II, IV, V, VI, VII, and VIII. See Motion to
Dismiss (Doc. No. 21); Memorandum in Support of Defendants’ Motion to Dismiss
(“Defs.’ Mem.”) (Doc. No. 22); Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
(“Pls.’ Opp.”) (Doc. No. 26). For the reasons that follow, the Motion to Dismiss is
granted as to the claims for negligent infliction of emotional distress (Counts VII and
VIII) and as to the retaliation claim in Count I (with leave to amend as to that claim) and
is otherwise denied.
Bakhit is a dark-skinned Muslim immigrant from Sudan. Compl. at ¶ 6. Miles is
a black American from Trumbull, Connecticut. Id. at ¶¶ 9–10. Safety Markings is a
business that stripes and marks roadways. Id. at ¶ 15. Both Bakhit and Miles began
working for Safety Markings in 2008. Id. at ¶¶ 7, 11.
Throughout the course of their employment with Safety Markings, the plaintiffs
have been subject to a hostile environment that has been rife with the use of racial and
ethnic slurs and derogatory remarks and jokes. Terms used included “n----r,” “camel
jockey,” “bomber,” and “terrorist.” Id. at ¶¶ 26–27. At one point, when Miles,
defendant Vezina, and two other employees (one of them black) were working on a job,
the other black employee began to step out of the truck; Vezina drove the truck as the
black employee hung on for nearly two blocks. Id. at ¶ 46. He then stated, “At least I
can die knowing I dragged a black man from the back of my truck.” Id. At another
For the purpose of considering the defendants’ Motion to Dismiss (Doc. No. 21), the court
assumes the truth of the well-pleaded facts asserted in the Complaint (Doc. No. 1).
point, Vezina had Bakhit open a medicine bottle for him. Id. at ¶ 58. Complying,
Bakhit pulled out the cotton ball from the bottle. Id. Vezina explained, “I just wanted
to see [a] black man pick cotton.” Id. Yet another time, Bakhit was at a gas station
with defendant Ryan and others, when Ryan offered Bakhit a banana—“Here Yosif . . . .
They are two-for-one”—comparing Bakhit to a non-human primate. Id. at ¶ 62. In the
middle of painting a highway, defendant Brininger told Bakhit, “I should paint you white.”
Id. At another point, Vezina intentionally sprayed Miles’ arm white, pointing to it and
stating, “That’s the only way you are going to move up in the company.”3 Id.
In response to these and similar occurrences, both Miles and Bakhit complained
to their immediate supervisors and to Kelly, the company’s president. Id. at ¶¶ 33, 37,
73. Despite these attempts to improve the situation by working with individuals at the
company, the supervisors to whom they complained did not make positive changes to
the working environment, and conditions did not improve. See, e.g., id. at ¶¶ 34, 38,
65, 76. Additionally, nineteen days after he filed a formal written complaint with Kelly,
Bakhit discovered that his car’s windshield had been smashed and reported it to the
police and (through counsel) to Safety Markings, which responded that it would arrange
for antidiscrimination training for its employees. Id. at ¶¶ 74–75.
Despite receiving very favorable performance reviews, Bakhit never advanced
beyond the lowest of six ranks for employees in the company. Id. at ¶ 88. Miles at
one point advanced from the lowest to the next rank. Id. at ¶ 89. When Miles sought
an additional promotion in December 2012, in front of other employees Kelly called him
“stupid” and advised him that he was being demoted back to the lowest rank—to which
The court has recited here just a few of the more egregious incidents alleged.
he was indeed demoted, and where he remains. Id. Meanwhile, white employees
with similar or less experience have been given more favorable treatment. Id. at ¶¶
90–96. White employees have also received unmerited comparatively favorable
treatment in terms of the difficulty or desirability of the work they have been assigned
and the guidance, training (and consequent opportunities for advancement), and actual
promotions that they have received. Id.
Faced with these and other torments from the defendants, Bakhit was eventually
unable to return to work. Id. at ¶ 77. He made clear to Kelly that he wanted no further
contact, but after a contested unemployment hearing in 2013, Kelly continued to
contact Bakhit repeatedly. Id. at ¶¶ 79–80.
STANDARD OF REVIEW
On a motion to dismiss under Rule 12(b)(6), a court takes all of a complaint’s
well-pleaded “the factual allegations of the complaint to be true and draw[s] all
reasonable inferences in the plaintiff’s favor.” Warren v. Colvin, 744 F.3d 841, 843 (2d
Cir. 2014). Dismissal of a claim is appropriate if, despite this favorable reading, the
complaint fails to allege “enough facts to state a claim for relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). The requirement to
allege “facts” means that “bald assertions” and “merely conclusory allegations” do not
suffice. Jackson v. Cnty. of Rockland, 450 F. App’x 15, 19 (2d Cir. 2011); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is “plausible on its face” if the
facts that the plaintiff pleads “allow[ ] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. That is, the
complaint must raise “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Determining whether a complaint states a plausible claim for relief
[is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Intentional infliction of emotional distress (Connecticut common law),
Counts V and VI
The plaintiffs bring claims for intentional infliction of emotional distress (IIED)
under Connecticut common law against all of the defendants in Counts V (Bakhit) and
VI (Miles) of the Complaint. The defendants argue that these counts fail to state
cognizable claims because the conduct alleged is not sufficiently “extreme and
outrageous.” Defs.’ Mem. at 13–14. The court disagrees and thus denies the
defendants’ motion as to these claims.
A plaintiff alleging IIED must establish “(1) that the actor intended to inflict
emotional distress; or that he knew or should have known that emotional distress was a
likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that
the defendant's conduct was the cause of the plaintiff's distress and (4) that the
emotional distress sustained by the plaintiff was severe.” Petyan v. Ellis, 200 Conn.
243, 253 (1986) (quoting Murray v. Bridgeport Hosp., 40 Conn. Sup. 56, 62 (1984))
(internal quotation marks omitted).
The only dispute is as to the second element—whether the conduct was
sufficiently “extreme or outrageous.” As a preliminary matter, the court notes that the
defendants cite to Connecticut Superior Court cases drawing inferences from Perodeau
v. City of Hartford, 259 Conn. 729, 757 (2002), to argue that the standard for “extreme
and outrageous” conduct is heightened in the employment law context. See Defs.’
Mem. at 14–17 (citing Fogarty v. Forman Sch., LLICV106002940S, 2011 WL 1288250
(Conn. Super. Ct. Mar. 10, 2011) and Wilk v. Abbott Terrace Health Ctr., Inc.,
CV065001328S, 2007 WL 2482486 (Conn. Super. Ct. Aug. 15, 2007)); Pls.’ Opp. at 15.
The court doubts whether this kind of inference is justified, and is of the view that
imposing a heightened standard on IIED claims in the employment context would
double count the policy concerns that the Connecticut Supreme Court expressed in
Perodeau. The Court there relied on those concerns to justify its conclusion that NIED
claims do not apply to the employment context except in the context of termination.
However, the Perodeau Court did not state that the burden for making out the “extreme
and outrageous” prong of IIED claims was any higher than in other contexts. For the
reasons that follow, the allegations here are sufficiently extreme to satisfy the court that
the answer to this question does not affect the result at this point in this case.
The Complaint is replete with abhorrent and derogatory racial epithets and other
abusive language and practices. The plaintiffs allege use of slurs such as “n----r”
(which was “widespread and prevalent,” Compl. at ¶ 26, and among some individuals
even “constant,” id. at ¶ 35), “camel jockey,” “bomber,” “terrorist,” and “spic” to
describe various people of color, id. at ¶ 26, and other abhorrent language and
practices that the court is reluctant to repeat. The defendants, plaintiffs say, also
executed numerous “jokes” such as having Bakhit open an aspirin bottle so that an
onlooker could say, “I just wanted to see black man pick cotton.” Id. at ¶ 58. In
Mr. Miles was working with two other employees, one of whom was African
American, under Foreman Ray Vezina. The African American man attempted
to exit the truck when Mr. Vezina began to accelerate, causing the African
American man to fall and get dragged nearly two blocks down the road. After
stopping the vehicle, Mr. Vezina stated, “At least I can die knowing I dragged a
black man from the back of my truck.”
Id. at ¶ 46. Yet another time, “Mr. Vezina asked Mr. Miles to [join him for] spraying
detail . . . . While spraying, Mr. Vezina intentionally sprayed Mr. Miles’ forearm,
pointed to the white on his arm and stated, ‘That’s the only way you are going to move
up in the company.’” Id. at ¶ 60.
None of the cases that the defendants cite contains allegations of race
discrimination. Nor has the Supreme Court of Connecticut directly addressed the
question of what is sufficiently “extreme and outrageous” in the context of race
discrimination. In Simms v. Chaisson, the Court emphasized the importance of the
“public policy goal [of] ‘deterr[ing] acts of intimidation and harassment based on bias or
bigotry.’” 277 Conn. 319, 336 (2006). The Simms Court relied on this goal to uphold
a substantial award for attorney’s fees even though a jury had merely awarded nominal
damages for IIED where the defendants had tormented the plaintiffs based on race.
Id. at 332–37. And “[s]everal Connecticut Superior Court cases have found racial
slurs, or comments about national origin to be extreme and outrageous conduct.” Burr
v. Howell, CV020464225S, 2003 WL 21675848 (Conn. Super. Ct. June 25, 2003)
(collecting cases). In the court’s view, Bakhit has satisfied his burden of pleading facts
sufficient to state a claim for IIED “‘that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557)).
Negligent infliction of emotional distress (Connecticut common law),
Counts VII and VIII
The plaintiffs also bring claims for negligent infliction of emotional distress (NIED)
under Connecticut common law. These are in Counts VII (Bakhit) and VIII (Miles) of
the Complaint. The defendants argue that here, too, the plaintiffs have failed to state
any claim in these counts. Miles concedes that he has not made out an NIED claim;
the court thus dismisses the claim in Count VIII. The court agrees with the defendants
as to Bakhit, and thus grants the defendants’ Motion as to the claim in Count VII.
To prevail generally on a claim for NIED, a plaintiff must establish that: “(1) the
defendant's conduct created an unreasonable risk of causing the plaintiff emotional
distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was
severe enough that it might result in illness or bodily harm; and (4) the defendant's
conduct was the cause of the plaintiff's distress.” Carrol v. Allstate Ins. Co., 262 Conn.
433, 444 (2003).
In addition to the elements stated in Carrol, for NIED claims in the employment
context Connecticut law requires that the relevant “conduct occur[ ] in the termination of
employment.” Perodeau v. City of Hartford, 259 Conn. 729, 763 (2002). The
defendants argue that Bakhit fails to state an NIED claim because “there is no
allegation that the defendants engaged in unreasonable conduct during the termination
process.” Defs.’ Mem. at 19. The court agrees: the rule in Perodeau renders Bakhit’s
allegations in Count VII—practically all of which are outside the context of the
termination process—insufficient to state a claim for NIED under Connecticut law.
Furthermore, assuming arguendo that the one potentially relevant allegation—that, after
Bakhit left, Kelly “repeatedly attempted to contact him directly, asking whether he was
coming back,” see Compl. at ¶ 80—falls within the termination process as a matter of
law, the court concludes that this allegation does not “allow[ ] the court to draw the
reasonable inference that [any] defendant is liable for” NIED. Iqbal, 556 U.S. at 678.
Discriminatory adverse employment action (42 U.S.C. §§ 1981, 1981a),
Counts I, II, III, and IV
Bakhit and Miles have combined several purported claims under sections 1981
and 1981a of title 42 of the United States Code into Counts I through IV of the
Complaint. All of these counts are against all defendants; Bakhit asserts Counts I and
II and Miles asserts Counts III and IV. The defendants move to dismiss all of these
Counts to the extent they are based on section 1981a, arguing that because the
plaintiffs did not bring Title VII claims, and section 1981a only provides additional
remedies to Title VII claimants, there can be no claim under section 1981a. The
plaintiffs concede the inapplicability of section 1981a and agree to “amend their
complaint and withdraw any mention of § 1981a as a basis for relief.” Pls.’ Opp. at 4.
The court directs that they do so.4
The defendants also move to dismiss some of the claims that Bakhit combines in
Count I, arguing that Bakhit fails to state a claim for constructive discharge, retaliation,
or failure to promote. Bakhit first objects that the defendants “cannot . . . seek partial
dismissal of a count on a motion to dismiss.” Id. He is incorrect. A “claim” is “[t]he
aggregate of operative facts giving rise to a right enforceable by a court.” Black's Law
Dictionary 281–82 (9th ed. 2009). A count is a mere organizational tool. See id. at
401–02 (defining “count”).
Traditionally, in each count of a complaint, a plaintiff states the facts constituting
his legal right to relief of a given kind, and separates out different kinds of legal rights
On a related note, the court observes that the defendants’ Motion seeks to dismiss in their
entirety Counts II and IV of the Complaint. The only basis on which to do so would be the defendants’
argument regarding section 1981a. But these Counts claim section 1981 as a basis as well, and the
into different counts. We are past the days of code pleading and the concomitant
construction of complaints against the plaintiff. See Construction of Pleadings, 5 Fed.
Prac. & Proc. Civ. § 1286 (3d ed.). While messy pleading sometimes makes it quite
difficult for courts and litigants to understand exactly what claims for relief a plaintiff
actually states, the courts read pleadings so as to do justice. Fed. R. Civ. P. 8(e).
Accordingly, the court construes the Complaint to allege that Bakhit (Counts I and II)
and Miles (Counts III and VI) are each entitled to relief provided by section 1981 of title
42 of the United States Code, although each plaintiff states several different claims
under that section. Specifically, in the aggregate these Counts purport to state section
1981 claims for, at least, (1) constructive discharge, (2) retaliation, (3) failure to
promote, and (4) hostile work environment. It is not clear to the court whether any
other claims are stated. For the sake of clarity to all parties and the court and fair
notice to the defendants, the court directs that the plaintiffs amend the Complaint to
enumerate in distinct counts each kind of section 1981 claim that each defendant
states. This Ruling addresses the subjects of the defendants’ Motion to Dismiss, to wit
Bakhit’s section 1981 claims for constructive discharge, retaliation, and failure to
The court will discuss the elements of each disputed claim below. However, the
basic section 1981 framework, much like other antidiscrimination statutes, provides that
a plaintiff establishes a prima facie claim by alleging that a defendant (1) intentionally
(2) committed one of the acts of discrimination prohibited by the statute (3) because of
the plaintiff’s membership in a protected class. See Brown v. City of Oneonta, 221
defendants do not challenge the plaintiffs’ reliance on section 1981.
F.3d 329, 339 (2d Cir. 1999); Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7
F.3d 1085, 1087 (2d Cir. 1993). In considering the pending Motion to Dismiss, the
court is mindful that a complaint need merely “nudge[ ] [the plaintiffs’] claims of
invidious discrimination across the line from conceivable to plausible.” Ashcroft v.
Iqbal, 556 U.S. 662, 680 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)) (quotation marks omitted).
Bakhit brings a claim for constructive discharge against the defendants. The
defendants argue that he fails to state a claim against any defendant because, in effect,
he suffered so long that, despite his allegations, things must not have been very bad.
They also argue that he has no claim against defendant Kelly because, as the
Complaint alleges, after Bakhit left, Kelly contacted him to ask whether he was coming
back. Compl. at ¶ 80. The court finds the defendants’ arguments unpersuasive and
denies the Motion as to this claim.
“An employee is constructively discharged when his employer, rather than
discharging him directly, intentionally creates a work atmosphere so intolerable that he
is forced to quit involuntarily,” and does so “on the basis of [the employee’s]
membership in a protected class.” Terry v. Ashcroft, 336 F.3d 128, 151–52 (2d Cir.
2003) (Title VII, ADEA, ERISA context), as quoted in Miller v. Praxair, Inc., 408 F. App’x
408, 410 (2d Cir. 2010) (Title VII and Connecticut law context).
The defendants first argue that Bakhit fails to allege that his working conditions
were sufficiently intolerable to constitute constructive discharge because “he endured
the alleged constant and unceasing racially offensive conduct for over four years before
deciding to leave.” Defs.’ Mem. at 9. The defendants cite no case law in support of
this argument, and the court finds it unpersuasive. The Complaint, fairly read,
describes increasingly abhorrent working conditions. See Compl. at ¶¶ 62–80.
However, even were conditions for an employee to remain at a roughly stable level of
intolerability, the court doubts whether a reasonable person might not eventually find
the conditions “so difficult or unpleasant” that he would “fe[el] compelled to resign.”
Serricchio v. Wachovia Secs. LLC, 658 F.3d 169, 185 (2d Cir. 2011); cf. Phillips v.
Bowen, 278 F.3d 103, 110 (2d Cir. 2002) (noting, in the context of First Amendment
retaliation by an employer, that while individual events might not be actionable “when
viewed in isolation, a finder of fact looking at them collectively over a period of several
years reasonably could find that they rise to the level of actionable harm”).
The defendants also argue that the Complaint fails to state a claim for
constructive discharge specifically against President Mark Kelly. They cite to a
decision stating that a plaintiff bringing this kind of claim “must at least demonstrate that
the employer’s actions were ‘deliberate’ and not merely ‘negligent or ineffective.’”
Petrosino v. Bell Atl., 385 F.3d 210, 230 (2d Cir. 2004) (quoting Whidbee v. Garzarelli
Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir. 2000)) (alterations from original
omitted). This principle refers only to the ultimate burden on the plaintiff—not to
pleading standards. The court is satisfied that Bakhit’s allegations about Kelly and
those whom Kelly supervised—especially the allegation that the kinds of hostility to
which Bakhit was subjected never abated over several years despite multiple
complaints, see Compl. at ¶¶ 33, 37, 65, 73, and more generally ¶¶ 26–77—sufficiently
establish the plausibility of deliberate and not merely negligent or ineffective action.
The defendants rest their argument entirely on Bakhit’s allegation that, after he
left, “Mr. Kelly repeatedly attempted to contact him directly, asking whether he was
coming back.” Compl. at ¶ 80. Read in a light favorable to the plaintiff, this statement
does not undermine the constructive discharge claim against Kelly. This allegation
says nothing concrete about Kelly’s motivations during the period of alleged
harassment. At most, this allegation’s implications about Kelly’s motivations is
ambiguous, which when read in a light favorable to Bakhit leaves the claim intact. See
Hoover v. Ronwin, 466 U.S. 558, 587 (1984).
Bakhit alleges that, nineteen days after he made a formal complaint through
counsel to Safety Markings about certain discriminatory treatment that he was suffering,
he faced unlawful retaliation in violation of section 1981 when his windshield was
smashed. See Compl. at 72–75. To establish a prima facie case of retaliation under
section 1981, the plaintiff must show: (1) participation in a protected activity; (2) that the
defendant knew of the protected activity; (3) an adverse employment action; and (4) a
causal connection between the protected activity and the adverse employment action.”
McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001) (retaliation in Title
Pointing to the most obvious kind of causation necessary to plead a retaliation
claim, the defendants do not challenge Bakhit’s allegations about why the perpetrator
committed this act, but only whether the defendants did (or caused) the act at all.
Defs.’ Mem. at 10–11.
Bakhit has failed to plead sufficient facts to state a retaliation claim. A plaintiff’s
allegations must not merely be “consistent with” but also “plausibly suggest” unlawful
behavior. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 567, 570 (2007)). Bakhit has not alleged facts plausibly suggesting that
a coworker smashed, or his employer caused the smashing of, his windshield. Bakhit
merely states, “On January 1, 2013, less than three weeks after his [formal, written
complaint to his employer], Mr. Bakhit’s front windshield was smashed with a rock. He
reported it to the police and it was also reported to defendant’s counsel.” Compl. at
¶ 74. Presumably Bakhit’s car was parked when this window-smashing occurred, but
Bakhit does not allege where his car was parked: whether at home or in his employer’s
parking lot; whether the vandalism occurred at day or night; whether, if not at work, the
car was in a place where his employer or employees might have known how to find it.
Although Bakhit need not allege the explicit fact that his employer or a coworker caused
the smashing, he must at least plausibly suggest that it is more likely that defendants,
rather than mere bad luck, were the cause of the vandalism.
Failure to promote
Bakhit claims that the defendants left him unpromoted in violation of section
1981. The defendants offer that “to the extent” Bakhit’s claim “is based on his religion,
not his race,” it should be dismissed. Defs.’ Mem. at 11. The court is satisfied that
Bakhit has stated a cognizable discrimination claim under section 1981 and accordingly
denies the Motion to Dismiss as to this claim.
The elements of a prima facie case of discriminatory failure to promote under
section 1981 are: (1) membership in a protected class; (2) seeking and being qualified
for an open job; and (3) “suffer[ing] an adverse employment action” (4) in “circum-
stances . . . permit[ting] an inference of discrimination” on the basis of membership in
that protected class. Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.
2004) (stating standard under Title VII); see Whidbee v. Garzarelli Food Specialties,
Inc., 223 F.3d 62, 69 (2d Cir. 2000) (“‘In analyzing § 1981 claims, we apply the same
standards as in Title VII cases.’” (quoting Hardin v. S.C. Johnson & Son, Inc., 167 F.3d
340, 347 n.2 (7th Cir. 1999))); Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 575 (2d Cir.
1989) (noting that section 1981 protects individuals from discrimination “on account of
[their] race, ethnicity, or national origin”).
The defendants challenge Bakhit’s claim on the fourth prong. Specifically, they
argue that, while Bakhit may state a claim for discrimination based on his religion, such
a claim is not cognizable under section 1981: only claims for discrimination on account
of race are. Bakhit concedes that discrimination on the basis of religious affiliation is
not prohibited under section 1981. Pls.’ Opp. 13–14. While some allegations in the
Complaint may suggest religious discrimination, however, see, e.g., ¶¶ 47–51, 53,
Bakhit’s allegations as a whole unquestionably indicate animus based on Bakhit’s race
that stands independently of any animus solely based on Bakhit’s religious affiliation.
For this reason, the court denies the motion as to Bakhit’s claim for failure to promote.5
For the foregoing reasons, the defendants’ Motion to Dismiss (Doc. No. 21) is
Further, any allegations suggesting discrimination on the basis of religion may still contribute to
a claim for discrimination under section 1981 as long as they are based on discrimination against Bakhit
that is, at the least, not solely based on Bakhit’s religion. Whether discrimination that outwardly appears
directed at a person for his religion is in fact motivated by his race, ethnicity, ancestry, or national origin
can be difficult to tease out. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). Given the
allegations in the Complaint, the court is satisfied that Bakhit does not at this stage rely solely, if at all, on
a theory of religious discrimination in bringing his claims under section 1981.
hereby GRANTED in part and DENIED in part. The court dismisses both plaintiffs’
common-law claims for negligent infliction of emotional distress (Counts VII and VIII)
and Bakhit’s retaliation claim arising under section 1981 (part of Counts I and II).
Furthermore, as the parties agree that the plaintiffs have stated no claims for relief
under section 1981a, the court dismisses such claims as well.
What remains are both plaintiffs’ IIED claims against all defendants (Counts V
and VI); Bakhit’s other section 1981 claims, including for constructive discharge, failure
to promote, and hostile work environment (the remainder of Counts I and II); and all of
Miles’ section 1981 claims, including for failure to promote and for hostile work
environment (Counts III and IV).
The plaintiffs are directed to file an Amended Complaint within 21 days from the
date of this Ruling’s entry. The court directs that they enumerate the remaining claims
in separate counts and that they incorporate within the corresponding count the
allegations necessary to obtain punitive damages as to such legal claims, to the extent
that they have a basis to do so. Unless the plaintiffs amend to clarify that they
intended to assert claims under section 1981 beyond those which the court has just
enumerated, the court will assume that its list exhausted all bases upon which the
plaintiffs seek relief under section 1981.
Dated at New Haven, Connecticut this 23rd day of June, 2014.
/s/ Janet C. Hall ______________
Janet C. Hall
United States District Judge
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