Igidi v. Connecticut Department of Correction
Filing
66
ORDER granting in part and denying in part 53 Motion to Dismiss. Signed by Judge Robert N. Chatigny on 1/9/2015. (Saner, K)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EMANUEL IGIDI,
Plaintiff,
v.
CONNECTICUT DEPARTMENT OF
CORRECTION and LEO ARNONE,
Defendants.
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Case No. 3:13-1338 (RNC)
RULING AND ORDER
Plaintiff Emanuel Igidi, a former employee of the
Connecticut Department of Correction ("DOC"), brings this action
pursuant to 42 U.S.C § 1983 against the DOC and former DOC
Commissioner Leo Arnone alleging race discrimination and
retaliation in violation of the Fourteenth Amendment, 42 U.S.C. §
1981 and Title VII.
The defendants have moved to dismiss the
action for lack of subject matter jurisdiction, lack of personal
jurisdiction and insufficiency of service of process, and failure
to state a claim on which relief may be granted.
has been filed.1
No opposition
Under Local Rule 7(a)(1), “[f]ailure to submit
a memorandum in opposition to a motion may be deemed sufficient
cause to grant the motion, except where the pleadings provide
1
In the absence of a response to the motion by plaintiff’s
counsel, a telephone conference was scheduled to discuss the
motion but plaintiff’s counsel failed to appear.
1
sufficient grounds to deny the motion.”
The Court is therefore
obliged to consider the pleadings to determine whether dismissal
is proper.
Cir. 2010).
See Goldberg v. Danaher, 599 F.3d 181, 183-84 (2d
After conducting the required review of the
pleadings, the Court concludes that the motion should be granted
in substantial part for essentially the reasons stated by the
defendants in their supporting memorandum.
I.
Plaintiff commenced this action on September 11, 2013.
Soon after the action was filed, he filed an amended complaint
adding eleven new plaintiffs.
On April 24, 2014, the Court
severed and dismissed the claims of the new plaintiffs without
prejudice to refiling in separate actions on the ground that the
claims could not be joined in one action.
Plaintiff then filed a
second amended complaint on May 16, 2014.
Defendants responded
by filing a motion for more definite statement, which was
granted.
On September 1, 2014, plaintiff filed a third amended
complaint, which is the subject of the motion to dismiss.
The third amended complaint (“the complaint”) alleges that
plaintiff, a male of African descent, experienced various acts of
discrimination at DOC during the period 2006 through 2013.
He
alleges that a correctional counselor threw boxes of toothpaste
at him; he was denied use of a computer; when he asked to be
allowed to leave work because he was experiencing high blood
2
pressure, his request was denied; he was verbally threatened; one
of his time-off slips was confiscated and destroyed; and he was
unfairly evaluated resulting in a non-recommendation for
promotion.
He further alleges that he made complaints with
regard to some of these acts of discrimination, and that he was
not recommended for promotion in retaliation for his complaints.
The complaint contains four counts.
The defendants seek an
order dismissing all four counts without leave to amend.
Assuming the truth of the non-conclusory factual allegations of
the complaint, the Court concludes that the motion should be
granted as to three of the four counts and granted in part as to
the remaining count.
II.
Count One
Count one of the complaint is brought pursuant to 42 U.S.C.
§ 1983 against defendant Arnone in his official capacity alleging
race discrimination in violation of the Fourteenth Amendment.
Third Amend. Compl. (ECF. No. 47) at 5-7.
Defendants move to
dismiss this count on the grounds that the Eleventh Amendment
bars claims for money damages against a state official in his
official capacity, see Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989); the complaint contains no specific
request for injunctive relief, see Bogle-Assegi v. CHRO, 331 Fed.
Appx. 70, 71-72 (2d Cir. 2009); Title VII provides the correct
3
avenue for seeking injunctive relief against the DOC, rather than
an official capacity claim against the former Commissioner; and
Arnone retired before this action was filed rendering him
incapable of complying with an order of injunctive relief.
In
the absence of opposition, the Court concludes that this count
should be dismissed for substantially the reasons stated by the
defendants.
Count Two
Count two is brought pursuant to § 1983 against defendant
Arnone in his personal capacity alleging race discrimination in
violation of 42 U.S.C. § 1981.
at 7-8.
Third Amend. Compl. (ECF. No. 47)
Defendants urge that this count must be dismissed
because, although Arnone has been served with process in his
official capacity (via delivery of the summons and complaint to
the Office of the Attorney General), no attempt has been made to
serve him in his personal capacity and the period for completing
service has expired.2
The docket does not reflect any return of
service or executed waiver of service for Arnone in his personal
capacity.
In addition, Arnone has submitted an affidavit stating
that he has not been served, Arnone Aff. (ECF. No. 53-2) ¶ 4, did
2
As defendants point out, service on a defendant in his
official capacity does not constitute service on the defendant in
his personal capacity. See Burgos v. Dep't of Children &
Families, 83 F. Supp. 2d 313, 316 (D. Conn. 2000) ("Service on
defendant . . . through the Attorney General or through [the
Department of Children and Families] is insufficient to subject
her to suit in her individual capacity.").
4
not receive a request to waive service in the mail, id. ¶ 5, and
did not designate, appoint or authorize anyone in the Office of
the Attorney General to act as his agent to accept service of
process for him in his individual capacity.
averments are uncontested.
Id. ¶ 6.
These
Thus, the motion to dismiss count two
is granted.3
Count Three
Count three of the complaint is brought against the DOC
alleging race discrimination in violation of Title VII.
Amend. Compl. (ECF. No. 47) at 9.
Third
Defendants move to dismiss
this count on the ground that, with regard to most of the acts of
discrimination alleged in the complaint, plaintiff failed to file
a timely complaint of discrimination with the EEOC.
To be
timely, a Title VII claim must be filed with the EEOC "within 300
days after the alleged unlawful employment practice."
§ 2000e-5(e).
42 U.S.C.
Generally, each act of discrimination constitutes
a separate “unlawful employment practice”; thus, an injured party
must file a charge of discrimination with the EEOC within 300
3
Defendants urge that plaintiff should not be given more
time to serve Arnone in his personal capacity because (1)
plaintiff’s counsel has failed to correct the failure to serve
Arnone personally despite having notice of the problem and (2)
permitting plaintiff to correct the problem would be futile
because Arnone was not at DOC during 2006 to 2010, and there are
no allegations in the complaint permitting a plausible inference
that he was personally involved in the alleged acts of
discrimination as required to support a claim against him under §
1983. In the absence of opposition, I agree.
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days of the discriminatory act or lose the ability to recover for
that act under Title VII.
See National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 111-114 (2002).4
4
Hostile work environment claims are treated differently.
Such a claim is timely if an act contributing to the hostile work
environment occurred within the filing period, in which case the
claim pulls in prior acts that contributed to the hostile work
environment. Defendants do not analyze count three as alleging a
claim for a hostile work environment. The phrase “hostile work
environment” does not appear in this count (although the phrase
does appear once in passing in the fourth count alleging
retaliation). Adequately pleading a hostile work environment
claim under current pleading standards requires considerably more
than simply including the phrase “hostile work environment”
somewhere in the complaint. Rather, a plaintiff must allege
conduct that "(1) 'is objectively severe or pervasive– that is, .
. . creates an environment that a reasonable person would find
hostile or abusive'; (2) creates an environment 'that the
plaintiff subjectively perceives as hostile or abusive;' and (3)
'creates such an environment because'" the plaintiff is a member
of a protected class. Patane v. Clark, 508 F.3d 106, 113 (2d
Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 691–92 (2d
Cir. 2001)). A workplace can be regarded as hostile if it is
“permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment." Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993). Whether conduct qualifies as sufficiently abusive
must be assessed in all the circumstances and depends on such
factors as "the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Id. at 23. As
a general matter, "isolated incidents . . . will not suffice to
establish a hostile work environment," though "a single episode
of harassment can establish a hostile working environment if it
is sufficiently severe." Redd v. New York Div. of Parole, 678
F.3d 166, 175–76 (2d Cir. 2012). In this case, the alleged acts
of discrimination fall well short of supporting a reasonable
inference that the plaintiff’s workplace at DOC was beset by
pervasive abusive conduct that was objectively severe. Thus, in
the absence of opposition, the timeliness of the allegations in
count three is properly analyzed on the assumption that the count
alleges discrete acts of discrimination.
6
Plaintiff filed his complaint with the EEOC on September 30,
2011.
Counting back from that date, the 300-day filing period
encompasses alleged acts of discrimination that occurred on or
after December 4, 2010.
All but two of the alleged acts of
discrimination set forth in the complaint occurred before then.
The two acts of discrimination alleged in the complaint that
occurred after that time (i.e. within the 300-day filing period)
are confiscation and destruction of a time slip on or about April
1, 2011, Third Amend. Compl. (ECF. No. 46) ¶ 25, and refusal to
provide the plaintiff with a fair evaluation leading to a nonrecommendation for promotion on or about January 23, 2013.
29.
Id. ¶
Defendants argue that these alleged acts of discrimination
do not support a Title VII claim because neither qualifies as an
adverse employment action covered by the statute.
An adverse employment action occurs for purposes of Title
VII when "there is a 'materially adverse change' in the terms and
conditions of employment."
Hrisinko v. N.Y. City Dep't of Educ.,
369 Fed. App'x 232, 235 (2d Cir. 2010).
Examples include "a
termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or
other indices . . . unique to the particular situation."
Galabya
v. N.Y. City Bd. of Ed., 202 F.3d 636, 640 (2d Cir. 2000); 2000);
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see Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir.
2004) ("[S]ubjective, personal disappointments do not meet the
objective indicia of an adverse employment action.").
Plaintiff does not allege that he was terminated or demoted,
suffered a loss of benefits or experienced a significant change
in responsibilities.
And destruction of a single time slip with
no loss of pay does not qualify as an adverse employment action.
However, a poor performance evaluation may qualify if it has a
"material impact, such as an effect on plaintiff's promotion
opportunities or pay."
See Bowen-Hooks v. City of New York, No.
10-CV-5947(MKB), 2014 WL 1330941, *22 (S.D.N.Y. Mar. 31, 2014).
In this case, plaintiff seems to be alleging that an unfair
performance evaluation resulted in a recommendation that he not
be promoted.
Crediting that allegation, as the Court must, it is
sufficient to allege an adverse employment action.
Accordingly,
the motion to dismiss count three is denied with regard to the
claim based on the unfair evaluation on the understanding that
the evaluation resulted in a recommendation that plaintiff not be
promoted.
Count Four
Count four is brought against the DOC alleging retaliation
in violation of Title VII.
To plead a claim of Title VII
retaliation, a plaintiff must allege facts showing "(1) that she
was engaged in protected activity by opposing a practice made
8
unlawful by Title VII; (2) that the employer was aware of that
activity; (3) that she suffered an adverse employment action; and
(4) that there was a causal connection between the protected
activity and the adverse action."
Galdieri-Ambrosini v. Nat'l
Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).
Defendants argue that even assuming the plaintiff engaged in
protected activity and experienced an adverse employment action,
the retaliation claim must fail due to the lack of a causal
connection between the two.
They point out that the protected
activity alleged by plaintiff - filing a complaint in May 2011 occurred more than a year and a half before the alleged
retaliation - an unfair evaluation in January 2013.
No bright line delineates the point at which the temporal
relation between protected activity and adverse action becomes
too attenuated to support a reasonable inference of causation.
See, e.g., Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d
Cir. 1980) (inferring causation because a retaliatory act
followed the filing of an EEOC complaint by eight months).
However, a lapse of more than a year and a half between the
protected activity and the adverse employment action tends to
undercut an inference of a causal connection.
In such a case,
therefore, more is required to support a plausible retaliation
claim.
Here, the complaint contains no allegations permitting a
reasonable inference that the unfair evaluation in January 2013
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was in retaliation for the complaint in May 2011.
In the absence
of such allegations, this count fails to state a claim on which
relief may be granted.
III.
Accordingly, the motion to dismiss is hereby granted as to
counts one and two, granted in part as to count three, and
granted as to count four.
As a result of this ruling and order,
only count three remains to be adjudicated and only insofar as it
alleges a Title VII claim against DOC for race discrimination
based on the allegedly unfair evaluation in 2013 that resulted in
a denial of promotion.
So ordered this 9th day of January 2015.
____________________________
Robert N. Chatigny
United States District Judge
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