Owoeye v. Connecticut et al

Filing 54

ORDER granting in part and denying in part 24 Motion to Dismiss. See attached memorandum of opinion. The case may proceed as to Plaintiff's Title VII claim, Count One of the Complaint ONLY. Signed by Judge Vanessa L. Bryant on 3/18/16. (Shechter, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

FALUKE OWOEYE,
Plaintiff,
v.
STATE OF CONNECTICUT,
DEPARTMENT OF MENTAL HEALTH
SERVICES AND ADDICTION SERVICES,
Defendants.

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CIVIL ACTION NO.
3:14-CV-0664 (VLB)

March 18, 2016

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT [Dkt. 24]
I.

Introduction
The Plaintiff, Faluke Owoeye (“Owoeye”), brings this action directly against

the State of Connecticut (the “State”) and directly against the Connecticut
Department of Mental Health and Addiction Service (“DMHAS”), an agency of the
State of Connecticut (collectively, the “Defendants”) in a four count Complaint
alleging: (i) discrimination and retaliation in violation of Title VII of the Civil Rights
Act of 1964 ("Title VII") (Count One), (ii) violations of Plaintiff’s rights under the
Equal Protection and Due Process Clauses of the United States Constitution
(Count Two), (iii) violations of Plaintiff’s rights under the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq. (Count
Three), (iv) common law claims of negligent infliction of emotional distress
(“NIED”) and intentional infliction of emotional distress (“IIED”) (Count Four).
Among the remedies sought by the Plaintiff are front and back pay and she

asserts that she is entitled to a jury determination of her entitlement to those
remedies.
Defendants have moved to dismiss Count One of the Complaint pursuant
to Fed. R. Civ. P. 12(b)(5) on the grounds that the summons and Complaint were
not served on Defendants until after the 120 day service period provided in Fed.
R. Civ. P. 4(m). [Dkt. 24]. Defendants have also moved to dismiss Counts Two,
Three and Four of the Complaint for failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)(6). Id. Plaintiff did not oppose the Motion to Dismiss insofar as it
sought dismissal of Counts Two, Three and Four. [Dkt. 35].
For the reasons that follow, Defendants’ Motion to Dismiss is GRANTED IN
PART AND DENIED IN PART. Plaintiff’s case may proceed with respect to Count
One only.
II.

Factual Background
The following facts and allegations are taken from Plaintiff’s Complaint.

[Dkt. 1].
Plaintiff was employed by DMHAS as a Registered Nurse serving in the
Neuro Research Unit of the Connecticut Mental Health Center (“CMHC”) from on
or about March 2012 through September 17, 2012. [Id. ¶¶ 14, 16, 60]. Plaintiff
describes herself as a black, African female, states that she was born in Nigeria,
and states that Yoruba, and not English, is her first language. [Id. ¶ 10].
Plaintiff alleges that her co-workers and her immediate supervisor were
hostile to her when she started in her position and expressed dissatisfaction with
her hiring. [Id. ¶¶ 21-22]. Specifically, Plaintiff’s supervisor is alleged to have

told her that people could not understand her because of her accent, and that the
job the plaintiff was doing was “not for [her]” and that the plaintiff did not “fit in”.
[Id. ¶ 23]. Plaintiff’s supervisor and coworkers are repeatedly alleged to have
gotten angry with the plaintiff on the one hand when she tried to ask questions,
but on the other hand to have criticized her job performance when she did not
understand what to do. [Id. ¶¶ 22, 26, 28, 31-37]. Her supervisor allegedly
rebuked Plaintiff openly in the presence of other staff and suggested that the
plaintiff did not know how to do her job. [Id. ¶ 24]. Plaintiff also alleges that her
supervisor condescendingly forced her to re-take medical and administrative
examinations that she had already passed in order to become a registered nurse.
[Id. ¶¶ 47-50].
Plaintiff complained directly to DMHAS about the conduct she alleges on
the part of her coworkers and supervisor in the form of letters filed on May 20,
2012 and September 3, 2012. [Id. ¶¶ 42, 59]. DMHAS thereafter terminated
Plaintiff's employment on September 17, 2012.
Plaintiff alleges that she has received a Notice of Right To Sue letter from
the United States Equal Employment Opportunity Commission (“EEOC”), and a
Release of Jurisdiction from the Connecticut Commission on Human Rights and
Opportunities (“CHRO”). [Id. ¶ 62]. Plaintiff subsequently commenced the
instant civil action on May 9, 2014. [Dkt. 1]. However, Plaintiff’s attorney, William
Palmieri, failed to request issuance of a summons and to effect service on the
Defendants within 120 days, as required by Fed. R. Civ. P. 4(m). Plaintiff moved
for an extension of time to complete service of process, claiming that a medical

condition prevented attorney Palmieri from meeting applicable deadlines. [Dkt.
11]. The motion was denied. [Dkt. 12]. Plaintiff thereafter moved to dismiss the
case without prejudice to re-filing. [Dkt. 13]. The Court declined to dismiss the
case and instead ordered that service be completed within a specific time
pursuant to Rule 4(m), giving the Plaintiff until May 11, 2015 to complete service.
Defendants then moved to dismiss the Complaint pursuant to Fed. R. Civ.
P. 12(b)(5) and 12(b)(6), citing, among other arguments for dismissal, Plaintiff’s
late service of the Complaint. [Dkt. 24]. Plaintiff’s attorney, Palmieri, initially
requested an extension of time until August 24, 2015 to respond to the motion.
[Dkt. 27]. One week after the Plaintiff’s requested deadline had passed, Palmieri
filed an opposition “brief” and a motion for leave to file nunc pro tunc. [Dkt. 35].
As is customary with legal memoranda filed by Palmieri, the opposition
memorandum was composed of thirteen pages, the first eleven of which were
simply the Plaintiff’s entire Complaint, ‘copied and pasted’ verbatim. Id. The
document contained no citation to any legal authority and objected only to the
dismissal of Count One of the Complaint. Id. Attorney Palmieri later appeared
before the Court for his repeated failure to produce timely discovery, contrary to
multiple Orders of this Court resulting in a Motion to Compel [Dkt. 40, Dkt. 45] and
a Motion to Dismiss the case [Dkt. 43] as a sanction pursuant to Fed. R. Civ. P.
37(b) and 41(b). [Dkt. 50].

III.

Standard of Review
a. Failure to State a Claim, Fed. R. Civ. P. 12(b)(6)

“‘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
quotations omitted).

IV.

Discussion
In her opposition to the subject motion Plaintiff states that she “objects in

part to the Motion to Dismiss.” In specifying the extent of her objection, Plaintiff
states: “[t]he plaintiff objects to the dismissal of Count One of the plaintiff’s
Complaint.” Accordingly Plaintiff concedes to the dismissal that Counts Two
through Four of her Complaint and waives and challenge to the dismissal of her
claims alleging Due Process and Equal Protection violations, violations of CFEPA
and common law claims of either negligent or intentional infliction of emotional
distress.
In any event, the court may deem the claims abandoned. See Local Rule
7(a)(1)(stating that “[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 sufficient grounds to deny the motion.”); McLeod v. Verizon New York,
Inc., 995 F. Supp. 2d 134, 143-44 (E.D.N.Y. 2014)(noting that “courts in this circuit
have held that ‘[a] plaintiff's failure to respond to contentions raised in a motion
to dismiss claims constitute an abandonment of those claims); Marrow v. Amato,
No. CIV. 3:07CV401 (PCD), 2009 WL 350601, at *7 (D. Conn. Feb. 12, 2009)(Plaintiff
abandoned claim by “failing to provide any response to [the Defendant’s
argument in its Motion] . . . or to address [the] claim in any manner.”); Coger v.
Connecticut, 309 F.Supp.2d 274, 280 (D.Conn.2004) (the court can consider a §

1981 claim abandoned merely because the plaintiff failed to respond to the
defendant's argument in favor of summary judgment).
If Plaintiff intended neither to withdraw or abandon the claims the claims
would be dismissed for the reasons ably argued by the State in its Motion to
Dismiss. This is because these claims were so patently unsustainable that the
Court strongly doubts whether Palmieri, in violation of his duty to sign nonfrivolous pleadings under Fed. R. Civ. P. 119(b)(2), could have made any good
faith attempt to ascertain whether “the claims, defenses, and other legal
contentions” asserted in Plaintiff’s Complaint were “warranted by existing law.”
Fed. R. Civ. P. 119(b)(2)
The Eleventh Amendment “provides immunity for states against suits in
federal court.” Gibson v. State of Connecticut Judicial Dep't, No. 3:05-CV-1396
(JCH), 2006 WL 1438486, at *2 (D. Conn. May 23, 2006), citing Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). “A state may be subject to
suit in federal court one of two ways (1) Congress can divest a state of immunity
through statutory enactment, as it has done with Title VII; or (2) a state may waive
its immunity and agree to be sued in federal court.” Sanchez v. Univ. of Conn.
Health Ctr., 292 F.Supp.2d 385, 392 (D. Conn.2003).
Plaintiff has not identified either a waiver or a Congressional abrogation of
the State's Eleventh Amendment immunity from suit in federal court with respect
to the Due Process and/or Equal Protection claim asserted in Court Two of the
Complaint. To the extent Plaintiff wished to assert those claims via 42 U.S.C. §
1983, such claims cannot be brought against a State or state agencies. See

Gibson, 2006 WL 1438486, at *2 n.1 (D. Conn. May 23, 2006) (“[T]o the extent that
the plaintiff's Complaint may be read to assert due process and equal protection
claims against the defendant pursuant to 42 U.S.C. § 1983, those claims would
also be barred by the Eleventh Amendment.”), citing Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989).
With respect to Plaintiff's CFEPA claims in Count Three, it is wellestablished that the State of Connecticut has not waived its Eleventh Amendment
immunity from CFEPA suits in federal court. See, e.g., Turner v. Eastconn Reg'l
Educ. Serv. Ctr., No. 3:12-CV-788 (VLB), 2013 WL 1092907, at *15 (D. Conn. Mar.
15, 2013); Dragon v. Connecticut, No. 3:14-CV-0749 MPS, 2014 WL 6633070, at *3
(D. Conn. Nov. 21, 2014) (Shea, J.); Wagner v. Conn. Dept. of Corr., 599 F. Supp.
2d 229, 237 (D. Conn. 2009) (Droney, J.); see also Walker v. Conn., 106 F.Supp. 2d
364 (D. Conn. 2000) (Burns, J.) (noting that “the wording of [CFEPA] . . . is the
antithesis of the clear declaration mandated by Great Northern” that the State has
waived immunity).
The Eleventh Amendment similarly bars Plaintiff’s state law claims for
infliction of emotional distress. Dragon, 2014 WL 6633070, at *3 (IIED claim
barred by Eleventh Amendment immunity). Indeed, Courts in this district have
already dismissed similar IIED claims against DMHAS due to sovereign immunity.
See, e.g., Volpe v. Connecticut Dep't of Mental Health & Addiction Servs., No.
3:13-CV-1796 CSH, 2015 WL 418149, at *8 (D. Conn. Jan. 30, 2015) (Eleventh
Amendment required dismissal of claim of intentional infliction of emotional
distress against DMHAS)

Defendant’s Motion to Dismiss is GRANTED as to the unopposed portion of
the Motion seeking dismissal of Plaintiff’s Equal Protection, Due Process, CFEPA
and common law claims. Counts Two, Three and Four of the Complaint are
DISMISSED.
Defendants’ sole argument in support of dismissal of Plaintiff’s Title VII
claim (Count One) is that Defendants have been prejudiced by the late service of
the Complaint in the instant matter and the Court should exercise its discretion to
dismiss the case, notwithstanding the Court’s prior Order permitting late service
of process on the Defendants. [Dkt. 24-1, Defs.’ Mem. at 8]. Defendants note that
a plaintiff must bring a Title VII claim within 90 days of the issuance of a CHRO
Release of Jurisdiction or an EEOC or DOJ Notice of Right to Sue Letter. See,
e.g., McPherson v. New York City Dep't of Educ., 457 F.3d 211, 213-14 (2d Cir.
2006). Although the limitations period is tolled during the 120 day window for
service of process provided in Fed. R. Civ. P. 4(m), that period expired in the
instant case on September 8, 2014. Defendants were not served until May 11,
2015. Defendants thus argue that they would be prejudiced in defending a timebarred claim, and that “the two key DMHAS employees who are at the center of
Plaintiff's claims retired from DMHAS.” [Dkt. 24-1, Defs.’ Mem. at 8].
Factors courts have considered in determining whether to grant a request
for an extension of time to effectuate service include whether: “(1) the statute of
limitations would prevent plaintiff from refiling, effectively converting the
dismissal to dismissal with prejudice; (2) the defendant had actual notice of the
claims prior to being served; (3) the defendant tried to conceal the defect in

service; and (4) the defendant will be prejudiced if an extension is granted.” John
v. City of Bridgeport, 309 F.R.D. 149, 154 (D. Conn. 2015). In cases where, as
here, a dismissal without prejudice due to failure to timely serve process would
result in a dismissal with prejudice because the underlying claims would be timebarred, the Second Circuit has provided that the court must carefully “weigh[ ]
the impact that a dismissal or extension would have on the parties.” Zapata v.
City of New York, 502 F.3d 192, 197 (2d Cir. 2007).
In the instant case, Plaintiff’s counsel, attorney Palmieri, purported to
serve process on the Defendants in a timely manner by mailing waiver-of-service
forms to the state. The manner in which process is served is prescribed by law.
In particular, the Federal Rules of Civil Procedure and the laws of the state of
Connecticut. Fed. R. Civ. P. 4(j)(2) and Conn. Gen. Stat. Sec. 52–64,. Waiver of
service is prescribed by the Federal rules for service of individuals, corporations
and associations subject to service under Fed.R.Civ.P. 4(e), (f) and (h. This court
has had occasion to inform attorney Palmieri of this fact in the past. See e.g.,
Soules v. State, No. 3:14-CV-1045 (VLB), 2015 WL 5797014, at *6 (D. Conn. Sept.
30, 2015) (Palmieri’s “attempt to serve the State Defendants by mailing a waiver of
service form disregarded both Fed. R. Civ. P. 4(j)(2) and Conn. Gen. Stat. Sec. 52–
64, which require that service be left with or sent to, via certified mail, the
Attorney General, in Hartford, CT.”). Palmieri’s mailed waiver forms and alleged
illness do not provide “good cause” for failure to comply with the deadlines set
forth in the Federal Rules and were not a “reasonable attempt” to comply with
those rules. See, e.g., Gibbs v. Imagimed, LLC, No. 11 Civ. 2949(ER), 2013 WL

2372265, at *2 (S.D.N.Y. May 30, 2013) (no good cause where counsel asserted
that he was preoccupied with the care of his sick wife and two daughters); AIG
Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 108
(S.D.N.Y. 2000) (waiver of service request was not a reasonable effort to complete
service). Nonetheless, Defendants acknowledge that they had actual notice of
the Plaintiff’s claims and received a copy of the Complaint. [Defs.’ Mem. at 8].
Palmieri’s assertion that he was unable to properly and timely serve
process because he was too ill to prosecute this case is suspicious. In fact,
Publicly-available court records suggest a lack of candor with this tribunal, as
attorney Palmieri was actively litigating in this court during his avowed
incapacity. In particular, between May 19, 2014 and April 9, 2015 when Palmieri
motion for an extension of time to serve the Defendants, professing that illness
disabled him from having done so, Palmieri filed ten (10) new cases in the District
Court for the District of Connecticut alone.
Although Defendants will be prejudiced in having to defend a time-barred
claim, that outcome will harm a defendant every time such an extension is
granted, and the Court must weigh this result against the significant prejudice to
the Plaintiff of a dismissal that will deny her an opportunity for a resolution of her
case on the merits. John v. City of Bridgeport, 309 F.R.D. 149, 156 (D. Conn.
2015) (“although a defendant forced to defend against an old claim may suffer
some prejudice, a plaintiff who is barred from suing through no real fault of her
own suffers a great deal more prejudice . . . Ms. John should not lose all or even
some of her claims because counsel erred.”). The Court is similarly unpersuaded

that the eight month delay has caused prejudice in the form of the two employee
retirements – there is no evidence that these retirements would not still have
occurred prior to dispositive motions and/or trial in the instant matter regardless
of the eight month delay. Nor have Defendants shown that the retirement of these
individuals would materially impede their defense of the case. Weighing the
equities between the parties and seeking not to penalize a litigant because of the
dilatory conduct of her attorney, albeit apparently inexcusable, the court finds
that the equities weigh in favor of the Plaintiff. Defendants’ Motion to Dismiss is
DENIED as to Count One.
Back Pay and Fromt Pay and Punitive Damages.
Defendants assert that that Plaintiff's claims for back pay, front pay and
punitive damages should not go to the jury because they are equitable claims.
See Perez v. State of Connecticut Department of Correction, No. 3:13-CV-150
(JCH), 2013 WL 4760955, at *7 (D. Conn. Sept. 4, 2013); Ettinger v. State University
of New York State College of Optometry, et al., No. 95 Civ. 9893, 1998 WL 91089
(S.D . N.Y. March 2, 1998). In response, Attorney Palmeri states:
The defendants’ Motion as to punitive damages and jury trial are
similarly without merit. It is beyond cavil that Title VII applies to
states and state agencies. The defendant cites only to two,
unreported district level decisions. No Second Circuit ruling or
reported decision supports the position of the defendants

As the Defendants correctly state in their reply brief, Attorney Palmeri’s assertion
has been poorly-researched. See Broadnax v. City of New Haven, 415 F.3d 265
(2d Cir. 2005) (“Because a lost wages award-whether in the form of back pay or
front pay-is an equitable remedy, a party is generally not entitled to a jury

determination on the question.”); TSE v. UBS Financial Services, Inc., 568
F.Supp.2d 274 (SDNY 2008). Accordingly, the Plaintiff’s claims for front pay, back
pay and punitive damages will be decided by the Court if Count One goes to the
jury.

V.

Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [Dkt. 24] is

GRANTED IN PART and DENIED IN PART. Count Two, Three and Four of the
Complaint are DISMISSED. Plaintiff’s case may proceed with respect to her Title
VII claim (Count One) ONLY.

IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 18, 2016