Ferrante v. Capitol Regional Educational Council
Filing
46
ORDER denying as moot 15 defendant's Motion to Dismiss and granting in part and denying in part 22 defendant's Motion to Dismiss plaintiff's Amended Complaint. See attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 03/30/15. (Rock, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SONDRA FERRANTE,
Plaintiff,
v.
CAPITOL REGIONAL EDUCATIONAL
COUNCIL
Defendant.
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
3:14-cv-00392-VLB
MARCH 30, 2015
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
Before the Court is defendant Capitol Regional Educational Council’s
(“CREC”) motion to dismiss plaintiff Sondra Ferrante’s amended complaint
in its entirety. Plaintiff’s amended complaint contains eight causes of
action: (1) disability discrimination in violation of the ADA Amendments
Act of 2008; (2) failure to provide reasonable accommodation in violation of
the ADA Amendments Act of 2008; (3) retaliation in violation of the ADA
Amendments Act of 2008; (4) disability discrimination in violation of the
Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §
46a-60(a); (5) failure to provide reasonable accommodation in violation of
the CFEPA, Conn. Gen. Stat. § 46a-60(a)(1); (6) retaliation in violation of the
CFEPA, Conn. Gen. Stat. § 46a-60(a)(4); (7) a common law claim for
intentional infliction of emotional distress (“IIED”); and (8) a common law
claim for negligent infliction of emotional distress (“NIED”).
Plaintiff’s initial complaint was filed in this court on March 27, 2014.
Defendant moved to dismiss the initial complaint on May 2, 2014. On May
22, 2014 plaintiff filed the amended complaint. Defendant then filed the
instant motion to dismiss the amended complaint in its entirety. For the
following reasons, defendant’s motion to dismiss plaintiff’s amended
complaint is granted in part and denied in part. Additionally, defendant’s
motion to dismiss plaintiff’s initial complaint is denied as moot.
I. FACTUAL BACKGROUND
The following facts are taken from plaintiff’s complaint unless
otherwise specified. Defendant CREC is a regional educational service
center in Hartford, Connecticut. Plaintiff was employed by defendant at all
relevant times. Plaintiff has worked for defendant in the following
positions: long-term substitute teacher, residential counselor, day care
camp counselor, and an associate instructor at a day school.
A. October 21, 2011 Right Shoulder Injury
On or about October 21, 2011, plaintiff injured her neck and right
shoulder while working for defendant (the “October 21 injury”). The injuries
to plaintiff’s shoulder include: (1) a complete tear of the right rotator cuff
tendon; (2) a superior labral tear from anterior to posterior, also known as a
“SLAP” tear; (3) a sprain of the acromioclavicular joint, also known as the
“AC joint”; (4) AC joint arthritis; (5) impingement syndrome; (6) rotator cuff
tendonitis; and (7) bursitis.
Plaintiff’s shoulder was treated initially with physical therapy,
multiple subacromial cortisone injections, and an AC joint injection.
However, her shoulder did not respond to these initial treatments. As a
result of the October 21 injury, plaintiff’s physician placed a “no physical
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hold” restriction on plaintiff’s work capacity. Plaintiff’s shoulder injury
caused her severe and diffuse shoulder and arm pain from October 21,
2011 until her April 2012 surgery. Plaintiff alleges that defendant was aware
of the “no physical hold” restriction placed on plaintiff following the
October 21 injury. Am. Compl. ¶ 53. While this restriction was in place,
plaintiff continued to work in her regular duty job.
Plaintiff had surgery on her shoulder on April 12, 2012. The surgery
included: an arthroscopic acromioplasty, debridement of the undersurface
rotator cuff tear, arthroscopic AC excision, and debridement of the SLAP
tear. After the surgery, plaintiff’s diagnosis included osteoarthritis of the
right AC joint and rotator cuff tendonitis, which are chronic conditions and
impairments.
Plaintiff’s physician took plaintiff out of work after the surgery,
finding that she was temporarily totally disabled. This continued until May
25, 2012, when plaintiff’s physician approved her return to light duty work,
with a two pound restriction on any lifting by her right arm. The restriction
on lifting continued for several months. As of the filing of the amended
complaint, plaintiff had not achieved “maximum medical movement.” Am.
Compl. ¶ 26.
In May 2012, following her April 2012 surgery, plaintiff informed
defendant of her restriction on lifting more than two pounds. Defendant’s
employee Michael Halloran told plaintiff that defendant had no “light duty”
work available, and that plaintiff could not return to work unless she was at
3
“100%.” However, defendant then placed plaintiff in three different light
duty jobs at three different facility locations: (1) filing accounts payable and
invoices; (2) packing boxes and copying and filing medical files; and (3)
answering phones and working as a receptionist. All three of these
positions had significantly diminished material job duties and
responsibilities as compared to plaintiff’s previous position as an
associate instructor at a day school.
Plaintiff has submitted applications to defendant for other positions
for which plaintiff professes to have been qualified and the essential job
functions of which she could perform without reasonable accommodation
despite her two pound lifting restriction. These positions included: bus
monitor positions; residential counselor positions; building substitute
positions; and receptionist positions. Plaintiff has only received one
interview from these applications, and has not been placed in any of these
positions. Plaintiff alleges “upon information and belief” that defendant
had other associate instructor job positions available at other schools.
On or about October 1, 2012 plaintiff filed complaints alleging
disability discrimination against defendant with the Connecticut
Commission on Human Rights and Opportunities (the “CHRO”) and the
United States Equal Opportunity Employment Commission (the “EEOC”).
At some point, defendant verbally informed plaintiff that it had a
policy of limiting light duty work to six months. On December 20, 2012,
defendant sent plaintiff home from work, invoking the six month light duty
4
policy. As of the filing of the amended complaint, defendant has not placed
plaintiff in an open job position for which she is qualified and physically
capable of performing.
B. Other Medical Conditions
In addition to her shoulder injury, plaintiff suffered from two other
conditions, the significance of which the parties do not explain.
1. October 21, 2011 Neck Injury
In regards to her neck, the October 21 injury caused plaintiff to have
C5-6 and C6-7 spondylosis, which is a degenerative osteoarthritis
condition that results in sensory and motor disturbances, such as severe
pain in the neck, shoulder, and arm, and muscle weakness. As a result,
plaintiff’s physician limited the amount of weight that plaintiff could lift to
15 pounds. This pain and weakness continued until plaintiff had neck
surgery on September 4, 2013, at which time plaintiff underwent anterior
cervical discectomy fusion (“ACDF”).
Recovery from ACDF surgery can take up to eighteen months, and
plaintiff was again temporarily totally disabled following her neck surgery.
Plaintiff’s neck surgeon released her work restriction on January 24, 2014,
but limited the amount of weight she was approved to lift to 25 pounds, and
also forbade her from overhead work, and repetitive bending, lifting, and
twisting. As of May 1, 2014, plaintiff was still restricted from lifting more
than twenty-five pounds, and had not reached “maximum medical
improvement” of her neck injury. Am. Compl. ¶ 38. Plaintiff expects that
5
she will be assigned a permanent partial impairment of her upper right
extremity, and a permanent partial impairment of the cervical spine. If
plaintiff had not had the neck surgery, she would likely have been unable to
lift more than fifteen (15) pounds for “the foreseeable future.” Am. Compl. ¶
47.
2. Non-Hodgkin Lymphoma
Plaintiff was diagnosed with non-Hodgkin lymphoma in 2007.
Plaintiff underwent chemotherapy, and her cancer is currently in remission.
While it was active, plaintiff’s non-Hodgkin lymphoma substantially limited
her normal cell growth, which caused her to suffer fatigue and nausea, and
substantially limited her ability to perform major life activities. Neither
plaintiff nor defendant addresses how the allegations regarding plaintiff’s
neck injury and/or her non-Hodgkin lymphoma are relevant to the claims in
the complaint.
II. STANDARD OF LAW
“‘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. United States, 678 F.3d 147, 152 (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
6
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) (citing
Iqbal, 556 U.S. at 678-79). “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 ‘well-pleaded 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 quotations omitted).
III. DISCUSSION
Defendant raises only one argument in its motion to dismiss, which
defendant asserts is sufficient to merit dismissal of counts one through six
of plaintiff’s amended complaint. Defendant’s only argument is that plaintiff
7
has failed to allege that she was able to perform the essential functions of
her job, with or without a reasonable accommodation. Plaintiff argues in
response that she has adequately alleged that she was able to perform the
essential functions of her job. Defendant’s argument is persuasive as to
plaintiff’s claims for failure to accommodate; however, defendant’s motion
disregards the other viable claims in plaintiff’s amended complaint.
Because Connecticut courts use the same analysis for both ADA and
CFEPA retaliation claims, this court will address plaintiff’s ADA and CFEPA
claims simultaneously in this opinion. See, e.g., Craine v. Trinity College,
791 A.2d 518, 531 n.6 (Conn. 2002) (“We look to federal law for guidance on
interpreting state employment discrimination law, and the analysis is the
same under both.” (citation omitted)); Buck v. AT&T Servs., No. 3:08-cv1619, 2010 U.S. Dist. LEXIS 63941, at *1 n.1 (D. Conn. June 28, 2010)
(“Connecticut courts generally analyze ADA and CFEPA claims under the
same standard.” (citing Ann Howard’s Apricots Rest. v. Comm’n on Human
Rights and Opportunities, 676 A.2d 844, 853-54 (Conn. 1996)).
A. Failure To Accommodate – Counts Two and Five
In counts two and five of her amended complaint, plaintiff alleges
that defendant discriminated against her under the ADA and CFEPA,
respectively, by denying her a reasonable accommodation and/or failing to
reassign her to an open job position for which she was able to perform the
essential functions. To bring a failure to accommodate claim, a plaintiff
must demonstrate: "(1) plaintiff is a person with a disability under the
8
meaning of the ADA; (2) an employer covered by the statute had notice of
his disability; (3) with reasonable accommodation, plaintiff could perform
the essential functions of the job at issue; and (4) the employer has refused
to make such accommodations." McMillan v. City of New York, 711 F.3d
120, 125-26 (2d Cir. 2013) (quotation and citation omitted).
The ADA expressly includes “reassignment to a vacant position” in
the possible definitions of “reasonable accommodation.” 42 U.S.C. §
12111(9)(B). “In the context of the ADA, reasonable accommodation may
include, inter alia, modification of job duties and schedules, alteration of
the facilities in which a job is performed, acquisition of devices to assist
the performance of job duties, and, under certain circumstances,
‘reassignment to a vacant position.’” McBride v. BIC Cons. Prods. Mfg. Co.,
583 F.3d 92, 97 (2d Cir. 2009) (quoting 42 U.S.C. § 12111(9)(B)).
Reassignment is an option, but plaintiff must be able to perform the
essential functions of her original job or the equivalent in order to make out
a claim for failure to accommodate. “[A] plaintiff need not plead specific
facts establishing a prima facie case of discrimination in violation of the
ADA to survive a motion to dismiss.” Starr v. Time Warner, Inc., No. 07 Civ.
5871, 2007 U.S. Dist. LEXIS 88219, at *10 (S.D.N.Y. Nov. 21, 2007)
(quotation and citation omitted). However, plaintiff must plead that she can,
with or without reasonable accommodation, “perform the essential
functions of the relevant job.” McBride, 583 F.3d at 97; see also Starr, 2007
U.S. Dist. LEXIS 88219, at *11-12 (dismissing plaintiff’s failure to
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accommodate claim in part because plaintiff failed to sufficiently plead that
she was able to perform her job with a reasonable accommodation because
plaintiff’s two year medical leave of absence was not reasonable).
Although plaintiff argues in her objection to the motion to dismiss
that her return to work after the initial injury demonstrates that she could
perform the essential functions of her regular duty job, plaintiff’s complaint
does not support that assertion. Plaintiff does not allege in her complaint,
nor does she assert in her objection to the motion to dismiss, that the
limitations on her physical abilities following her April 2012 surgery were
equal to, or lesser than, the limitations she endured in the period between
her initial injury and her April 2012 surgery. Therefore, plaintiff cannot rely
on her allegations regarding the initial post-injury period to show that she
was able to perform the essential functions of her job after she had surgery
in April 2012. Nor does plaintiff even allege in a conclusory fashion that she
was capable of performing the essential functions of her regular duty job
following her April 2012 surgery.
What plaintiff alleges is that defendant had other open job positions,
and that she could perform the essential functions of these positions, Am.
Compl. ¶¶ 61, 64. However, as noted above, the question is whether
plaintiff could perform the essential functions of the relevant position,
which in this claim, is the position plaintiff held at the time she was injured
and continued to hold between the injury and her April 2012 surgery.
Plaintiff does not allege that these other open positions had essential
10
functions that were equivalent to those of plaintiff’s regular duty position.
As the complaint is plead, it leaves open the possibility that those
positions could have resulted in a promotion, in which case defendant was
not obligated to reassign plaintiff. See McBride, 583 F.3d at 98 n.4 (“an
employer does not have an obligation to promote an employee in order to
accommodate a disability that renders her unable to perform the essential
functions of her current job.”).
Nor is it clear to the court that plaintiff could allege that she was able
to perform the essential functions of her job after her April 2012 surgery,
given that plaintiff was restricted from lifting more than two pounds.
Although plaintiff does not expressly plead what her regular duty job was,
or describe the essential functions of that job, the court infers from the
complaint that plaintiff’s regular duty job was that of “associate instructor,”
as plaintiff refers repeatedly to that job throughout her complaint. Am.
Compl. ¶¶ 52, 59-62. The court cannot fathom how plaintiff could be
qualified work as an instructor in any educational institution which
necessarily requires the supervision and care of school-aged children,
each of whom weighs well over two pounds, with a restriction on lifting
more than two pounds and the Plaintiff has not plead facts to explain her
contention that she was.
Defendant argues in its reply brief that defendant “temporarily”
waived certain of the “requirements” of plaintiff’s job during the period
between plaintiff’s October 2011 injury and her April 2012 surgery. Def.
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Reply at 4. The court does not consider this argument, as it is
impermissibly raised for the first time in defendant’s reply brief, and there
is no reason why it could not have been raised in the initial motion to
dismiss. Further, it is also an impermissible attempt to introduce facts into
defendant’s motion to dismiss, as plaintiff’s complaint does not allege or
infer that defendant waived any of the “requirements” or any essential
functions of plaintiff’s job during the period between her initial injury and
her initial surgery.
The court finds that plaintiff has failed to plead factual allegations
sufficient to support a failure to accommodate claim, and thus the court
grants defendant’s motion to dismiss as to the second and fifth counts in
plaintiff’s amended complaint. Because defendant’s initial motion to
dismiss put plaintiff on notice of this deficiency in her complaint, and
plaintiff failed to cure it in her amended complaint, plaintiff’s
accommodation claims are dismissed with prejudice.
B. Disability Discrimination Claims - Counts One and Four
Although the court agrees that plaintiff’s amended complaint has
failed to plead a claim for failure to accommodate with regards to
defendant’s failure to return plaintiff to her regular duty job after her April
2012 surgery, defendant’s moving papers do not address the other
allegations in plaintiff’s complaint. The court can discern two theories of
disability discrimination supported by the allegations in plaintiff’s
complaint that go unaddressed by defendant: (1) a claim for a
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discriminatory failure to hire with regards to her applications for other
positions for which she could perform the essential functions; and (2) a
claim arising from defendant’s refusal to give plaintiff work after December
20, 2012.
“A plaintiff asserting a violation of the ADA must prove that: (1) the
defendant is covered by the ADA; (2) plaintiff suffers from or is regarded as
suffering from a disability within the meaning of the ADA; (3) plaintiff was
qualified to perform the essential functions of the job, with or without
reasonable accommodation; and (4) plaintiff suffered an adverse
employment action because of his disability or perceived disability.”
Cabobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005) (citation
omitted).
As described above, plaintiff alleges that defendant had open
positions for which she was qualified and could perform the essential
functions, but that defendant failed to hire her for any of those positions.
Plaintiff alleges that defendant was covered by the ADA, that she suffers
from a disability within the meaning of the ADA, that she was qualified to
perform the essential functions of these jobs, and that defendant failed to
hire her, and that “[a]ny and all non-discriminatory excuses offered by the
defendant to explain the adverse employment actions would be a pretext to
mask an unlawful motivating factor of disability discrimination and/or
retaliation.” Am. Compl. ¶ 77.
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Plaintiff’s amended complaint also alleges that in May 2012, after
initially telling her that it had no light duty work available, defendant placed
plaintiff in three different positions. Defendant told plaintiff that she was
limited to six months of light duty, and then stopped giving her work in
December 2012 for the stated reason that her six months of light duty had
expired.
Defendant does not challenge the sufficiency of any of these
allegations, and the court finds that they are sufficient to state plausible
claims for disability discrimination and to put defendant on notice of the
claims against it. Defendant’s motion to dismiss is denied as to plaintiff’s
claim for disability discrimination under both the ADA and CFEPA.
C. Counts Three and Six – Plaintiff’s Retaliation Claims
In counts three and six of her amended complaint, plaintiff alleges
claims of retaliation under the ADA and CFEPA, respectively. To establish a
prima facie case of retaliation, plaintiff must show: “(1) [she] engaged in an
activity protected by the ADA; (2) the employer was aware of this activity;
(3) the employer took adverse employment action against him; and (4) a
causal connection exists between the alleged adverse action and the
protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.
2002) (citation omitted).
The ability to perform the essential functions of a job is not an
element of a retaliation claim, and defendant cites to no authority for
dismissing a claim for failure to plead such an element. In fact, in
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examining the defendant’s moving papers, the only reference to plaintiff’s
retaliation claims is found in the procedural background section of
defendant’s memorandum of law, in which defendant lists the claims
asserted in plaintiff’s complaint. Although defendant asserts in the
introduction to its memorandum of law that it moves to dismiss the entirety
of the first amended complaint, defendant does not challenge the
sufficiency of plaintiff’s pleading with regards to her retaliation claims, and
thus the motion to dismiss is denied with regards to those claims.
The Court notes that the plaintiff does not plead that the defendant
was aware that she had filed complaints with the EEOC and the CHRO at
the time the adverse action was taken; however as the Defendant does not
raise that issue nor does it raise any basis to dismiss the retaliation claim.
Accordingly, the Court presumes that although not plead, the defendant
was aware of plaintiff’s protected activities. Thus the case will proceed with
the claims that Defendant retaliated against the Plaintiff both by failing to
hire her and for the protected activity of requesting an accommodation for
her disability. See, e.g., Goonan v. Fed. Reserve Bank of N.Y., No.
12cv3859, 2014 U.S. Dist. LEXIS 99922, at *28-29 (S.D.N.Y. July 22, 2014)
(noting that “[i]t is well established that requesting an accommodation . . .
[is] behavior protected from an employer's retaliation.” (citing Carreras v.
Sajo, Garcia & Partners, 596 F.3d 25, 35-36 (1st Cir. 2010))).
D. Count Seven – Intentional Infliction of Emotional Distress
15
Plaintiff alleges in count seven that defendant intended to cause her
emotional distress, that defendant’s conduct was “extreme and
outrageous,” and that the defendant’s actions “cause[d] the plaintiff to
suffer severe emotional distress.” Am. Compl. ¶ 115. Although not included
in count seven, plaintiff alleges elsewhere in her amended complaint that
she suffered “severe humiliation, embarrassment, emotional distress, and
harm to professional reputation.” Am. Compl. ¶ 91.
Defendant argues that plaintiff’s IIED claim should be dismissed
because plaintiff does not allege conduct that is sufficiently extreme and
outrageous. Plaintiff argues in response that defendant’s conduct was
extreme and outrageous because the adverse actions were taken by
Plaintiff's superior.
1. Legal Standard for IIED Claims in Connecticut
To make out a common law claim for intentional infliction of
emotional distress in Connecticut, a plaintiff must show: (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. Rivera v. Thurston Foods, Inc., 933 F.
Supp. 2d 330, 343 (D. Conn. 2013) (citing Petyan v. Ellis, 200 Conn. 243, 510
A.2d 1337, 1342 (Conn. 1986)).
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The Connecticut Supreme Court provided the following guidance to
determine whether conduct is "extreme and outrageous":
Liability for intentional infliction of emotional distress requires
conduct that exceeds all bounds usually tolerated by decent society.
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. Generally, the case is
one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead
him to exclaim, "Outrageous!" Conduct on the part of the defendant
that is merely insulting or displays bad manners or results in hurt
feelings is insufficient to form the basis for an action based upon
intentional infliction of emotional distress.
Appleton v. Board of Educ. Of the Town of Stonington, 757 A.2d 1059, 1062
(Conn. 2000) (internal quotations and citations omitted). In considering
whether a plaintiff's claim for IIED sufficiently alleges extreme and
outrageous conduct, the court evaluates "the employer's conduct, not the
motive behind the conduct." Miner v. Cheshire, 126 F. Supp. 2d 184, 195 (D.
Conn. 2000) (citation omitted).
It is well settled that in Connecticut, including in recent precedent
from the Connecticut Supreme Court, that “[w]hether a defendant's
conduct is sufficient to satisfy the requirement that it be extreme and
outrageous is initially a question for the court to determine." Perez-Dickson
v. City of Bridgeport, et al., 43 A.3d 69, 100-01 (Conn. 2012) (quoting
Appleton, 757 A.2d at 1062). "Only where reasonable minds disagree does
it become an issue for the jury." Id. (quoting Appleton, 757 A.2d at 1062).
2. Plaintiff Has Failed to Adequately Allege Extreme And Outrageous
Conduct
17
Although the complaint alleges that defendant had illegal
motivations in taking adverse employment actions against plaintiff,
Connecticut precedent establishes that discriminatory employment
actions, although unlawful on other grounds, do not rise to the level of
conduct that is "beyond all possible bounds of decency." See, e.g., Miner,
126 F. Supp. 2d at 195 (collecting cases); see also Campbell v. Town of
Plymouth, 811 A.2d 243, 252 (Conn. App. Ct. 2002) (holding that the
defendant-employer's conduct was not extreme and outrageous when
defendant repeatedly harassed the plaintiff-employee to submit
erroneous and fraudulent reporting information to a state agency, and then
fired employee for not doing so). Even conduct that is “distressing and
hurtful” to a plaintiff is not necessarily sufficient to make out a claim for
intentional infliction of emotional distress. Appleton, 757 A.2d at 1061-63
(holding that a teacher failed to state a claim for IIED when she alleged the
principal placed her on administrative leave, submitted her to two
psychological evaluations, called the police to have her escorted out of the
building, collected information on her and conducted meetings outside her
presence, made condescending comments to her in front of coworkers,
and telephoned the teacher's daughter representing that the teacher had
been acting differently); see also Bator v. Yale-New Haven Hosp., 808 A.2d
1149, 1150-51 (Conn. App. Ct. 2002) (affirming decision of trial court to
grant defendant's motion to strike plaintiff's intentional infliction of
emotional distress claim where plaintiff alleged that defendants disciplined
18
him for failing to report to work even though he was under a physician's
care, paid him less than those with less experience, told him to seek
psychiatric help, gave him a written warning when he complained about a
rotation change, and recommended that plaintiff attend anger management
classes after having two verbal altercations).
The only conduct by defendant described in plaintiff’s complaint is:
(1) that she was initially told she that there was no light duty work for her
and that she could not come to work unless she was at “100%”; (2) that
when she was given light duty work that she was given work that was not
equivalent to the work she had prior to her injury; (3) that she was sent
home in December 2012 and not given further work; and (4) a failure to hire
her for any of the positions to which she had applied and for which she
was qualified. None of this conduct is sufficiently extreme and outrageous
to support an IIED claim, and in fact is less so than in other cases in which
IIED claims have been dismissed. See, e.g., Appleton, 757 A.2d at 1061-63.
Plaintiff cites to Craig v. Yale University School of Medicine, 838 F.
Supp. 2d 4 (D. Conn. 2011), to support her argument that “[a] subordinate
relationship is a recognized factor that can rise [sic] otherwise insufficient
conduct to the level of extreme and outrageous.” Pl. Obj. at 21. However,
that case is distinguishable because the Craig court found that plaintiff had
alleged that “far more than mere loss of a job was at stake.” Craig, 838 F.
Supp. 2d at 11. The Craig plaintiff was a medical resident and defendants’
alleged interference with his medical residency could present an
19
“insurmountable” obstacle to his medical career because defendants “had
significant control over the future of his career in medicine” which had
been his lifetime pursuit. Id. Plaintiff has not alleged that CREC engaged in
conduct that could place an insurmountable obstacle in her career or that
defendant had significant control over her future career, and thus her
citation to Craig is unpersuasive.
E. Count Eight – Negligent Infliction of Emotional Distress
Defendant argues that under Connecticut law, a plaintiff may not
bring a claim for NIED unless the actions giving rise to the claim occur
during the termination of plaintiff’s employment. Because defendant never
terminated plaintiff’s employment, plaintiff may not assert a claim for NIED.
Def. Mem. at 4-6. The court need not reach the merits of this argument, as
plaintiff has withdrawn the claim. Pl. Obj. at 1. Plaintiff’s NIED claim is
dismissed with prejudice. Plaintiff is ordered to file an amended complaint
omitting that claim within twenty-one (21) days of this opinion.
IV. Defendant’s First Motion to Dismiss
As noted above, defendant has filed two motions to dismiss. The two
motions raise nearly the same arguments; the only difference is that
defendant argues in its initial motion to dismiss that plaintiff has failed to
adequately allege that she suffers from a disability under the ADA or
CFEPA. Defendant has wisely abandoned this argument in its motion to
dismiss the amended complaint.
20
Under the ADA “‘disability’ is defined as “(A) a physical or mental
impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as
having such an impairment . . .” 42 U.S.C. § 12102(1) (2015). Major life
activities “include, but are not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2). “While the ADA itself
does not define the term ‘substantially limited,’ post-ADAAA regulations
state that this standard ‘is not meant to be a demanding [one],’ and ‘should
not demand extensive analysis.’” Willoughby v. Conn. Container Corp., No.
3:11cv992(CSH), 2013 U.S. Dist. LEXIS 168457, at *23-24 (D. Conn. Nov. 27,
2013) (quoting 29 C.F.R. 1630.2(j)(1)(i) & (j)(1)(iii)). The regulations
implementing the ADA provide that: “An impairment is a disability within
the meaning of this section if it substantially limits the ability of an
individual to perform a major life activity as compared to most people in
the general population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life activity in
order to be considered substantially limiting.” 29 C.F.R. 1630.2(j)(ii) (2015).
CFEPA’s definition of disability is “more generous” than the ADA
definition, as CFEPA’s definition includes “any chronic physical handicap,
infirmity or impairment.” Muoio v. Costco Wholesale Corp., No. 3:13cv44,
2015 U.S. Dist. LEXIS 4239, at *38 (D. Conn. Jan. 14, 2015) (quoting Conn.
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Gen. Stat. § 46a-51(15)). “CFEPA does not contain a requirement that a
plaintiff's impairment ‘substantially limit’ the plaintiff's "major life
activities.” Stoffan v. S. New Eng. Tel. Co., 4 F. Supp. 3d 364, 373 (D. Conn.
2014) (quoting Beason v. United Techs. Corp., 337 F.3d 271, 277-78 (2d Cir.
2003)).
Although plaintiff does not expressly plead that her shoulder injury
substantially limited a major life activity, plaintiff pleads conclusorily in her
amended complaint that “One or more of the injuries, medical conditions
and/or diseases substantially limits one or more major life or boldily [sic]
activity.” Am. Compl. ¶ 49. This allegation is too vague to be helpful, as it
leaves open the possibility that plaintiff’s non-Hodgkin lymphoma, which
has no apparent relevance to the claims presented by plaintiff, is the only
condition that limits a major life activity. However, plaintiff has raised
sufficient allegations regarding her shoulder injury, including her no
physical hold restriction, as well as her restriction on lifting more than two
pounds of weight, for the court to find that plaintiff has plausibly alleged
that she is disabled under both the ADA and CFEPA. Defendant’s motion to
dismiss plaintiff’s initial complaint is denied as moot.
CONCLUSION
For the above reasons, defendant’s motion to dismiss plaintiff’s
amended complaint is granted in part and denied in part. Defendant’s
motion to dismiss plaintiff’s initial complaint is denied as moot.
IT IS SO ORDERED.
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________/s/_________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 30, 2015.
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