Soules v. Connecticut et al
Filing
59
ORDER granting 33 Motion to Dismiss; granting 35 Motion to Dismiss. See the attached memorandum of decision. The Clerk is directed to enter judgment in favor of Defendants and to close this case. Signed by Judge Vanessa L. Bryant on 9/30/15.(Shechter, N.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GARY SOULES,
Plaintiff,
v.
THE STATE OF CONNECTICUT,
THE STATE OF CONNECTICUT
DEPARTMENT OF EMERGENCY
SERVICES AND PUBLIC PROTECTION,
THE TOWN OF OXFORD,
GEORGE R. TEMPLE, and
DANIEL SEMOSKY,
Defendants.
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CIVIL ACTION NO.
3:14-CV-1045 (VLB)
SEPTEMBER 30, 2015
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTIONS TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT [Dkt. 33, 35]
I.
Introduction
The Plaintiff, Gary Soules (“Soules”), brings this action against
Defendants, the State of Connecticut (the “State”), the State of Connecticut
Department of Emergency Services and Public Protection (the “State Police”) and
Daniel Semosky (“Semosky”), in both his official and individual capacities
(collectively, the “State Defendants”), as well as the Town of Oxford (the “Town”)
and George R. Temple (“Temple”), in both his official and individual capacities
(collectively, the “Town Defendants”) for Intentional Infliction of Emotional
Distress. Further, Soules alleges (against only the State, State Police, the Town,
Semosky and Temple in their official capacities) violations of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”); the Rehabilitation Act of
1973, 29 U.S.C. § 794 et seq. (the “Rehab Act”); the Age Discrimination in
Employment Act of 1967, 29 U.S.C. 621 et seq. (the “ADEA”); Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000(e) (“Civil Rights Act”); Connecticut Fair
Employment Practices Act, C.G.S. § 46a-60 et seq. (“CFEPA”); and the Uniformed
Services Employment & Reemployment Rights Act, 38 U.S.C. 4301 et seq.
(“USERRA”). Finally, Soules alleges (against only Temple and Semosky, in their
individual capacities) constitutional violations of the U.S. Constitution, Amend. I
(Freedom of Speech), Amend. V (Due Process), and Amend. XIV (Equal
Protection) pursuant to 42 U.S.C. § 1983, and alleges Municipal Liability for such
constitutional violations against only the Town pursuant to 42 U.S.C. § 1983.
The State Defendants have moved to dismiss Soules’ Amended Complaint
in its entirety for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1), for lack of personal jurisdiction on account of insufficient service of
process pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(5), and/or for failure to state
a claim pursuant to Fed. R. Civ. P. 12(b)(6). [Dkt. #35, State Defs.’ Mot. to Dismiss
at 1]. The Town Defendants have also moved to dismiss Soules’ Amended
Complaint in its entirety for lack of subject matter jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(1) and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
[Dkt. # 33 Town Defs.’ Mot. to Dismiss at 1]. For the reasons that follow,
Defendants’ Motions to Dismiss are GRANTED IN FULL.
II.
Factual Background
The following facts and allegations are taken from Plaintiff’s Amended
Complaint.
Plaintiff is a twenty-nine year old police officer who began employment
with Defendant Town of Oxford on March 28, 2007. [Dkt. #28, Amend. Compl. ¶¶
5, 16]. He alleges that he is the youngest member of Town’s Police Department.
[Id. ¶ 24]. Plaintiff also alleges that he is a combat veteran of the United States
Army who suffers from Post-Traumatic Stress Disorder (“PTSD”). [Id. ¶¶ 6, 17].
Further, Plaintiff has an unspecified “permanent partial disability” to his knee,
which he injured while “in the line of duty.” [Id. ¶ 53]. Nonetheless, Plaintiff has
been able to perform “the essential functions of his employment with or without
reasonable accommodation.” [Id. ¶ 20]. He claims he has been “nominated [for]
and [has] received numerous accolades and citations,” and was even named
“Officer of the Year.” [Id. ¶ 21].
Defendant Temple is the First Selectman, and chief executive officer of the
Town; as such, he is “the highest ranking governmental authority and policy
setter” in the Town. [Id. at ¶ 10, 34]. Defendant Semosky is a Sergeant in the
State Police, as such he is an “employee, officer and agent of the defendants
State [] and State Police.” [Id. ¶ 11]. Pursuant to Town’s policy to employ
members of the State Police to work “in conjunction with” the Town’s Police
Department, Semosky is the “permanent supervisory authority of the Resident
Trooper program in Oxford.” [Id. ¶¶ 22, 23].
Plaintiff pled in conclusory fashion that Defendants Temple and Semosky
are aware, or perceive that, the Plaintiff is a veteran, is of a young age, and
suffers from physical and mental disabilities. [See id. ¶¶ 19, 26, 28, 36, 53, 54, 56].
Read liberally, the facts pled to support this allegation are that on unknown dates,
Semosky has “told [Plaintiff] that many people were ‘unhappy’ that [he] returned
to his employment as a police officer after completing his most recent tour of
combat duty,” has frequently sworn at the Plaintiff and “belittle[d] the plaintiff
because of his age, implying that the plaintiff [was] too young to do his job
properly;” was “frequently physically intimidating to the plaintiff . . . has thrown
around pieces of furniture at the workplace when he becomes angry . . .
intentionally subjected the Plaintiff to strenuous activity related to his knee . . .
[and] accused the plaintiff of malingering.” [Id. ¶¶ 26-29, 54].
The Court is unable to chronologize the following allegations because the
vague and disorganized Complaint lacks dates for most factual allegations.
However, a liberal reading of the Complaint suggests that Plaintiff alleges that as
part of a series of conversations in 2012 and 2013, in which Plaintiff sought to
discuss his work environment with Defendant Temple, Temple “instructed the
plaintiff to refrain from arresting certain persons for the crime of driving under
the influence,” but told him he should instead “park their cars and take them
home.” [Id. ¶¶ 33, 37]. In response to Temple’s instruction, the Plaintiff stated
that his order was “unlawful, and dangerous, and [that he] would not do so.” [Id.
¶ 34].
On September 18, 2012, Temple ordered that Plaintiff “not conduct criminal
or motor vehicle investigations without the presence of a senior officer,” and
stated that “he would be disciplined further if he did not follow this order.” [Id. ¶¶
40-41]. Plaintiff claims that Temple’s order made it “virtually impossible” for
Plaintiff to do his job, because of the number of officers in the Town. [Id. ¶ 42].
On December 7, 2012, Temple is alleged to have stated that Plaintiff’s “whole
world would fall apart” if he disregarded his order. [Id. ¶ 43].
In February, 2013, Plaintiff alleges that he issued a motor vehicle infraction
during a lawful motor vehicle stop to a friend of Defendant Temple. As a result,
on February 10, 2013, “Temple demanded the Plaintiff provide him with a written
report of the [] stop,” and conducted an Internal Affairs investigation of the
Plaintiff. [Id. ¶¶ 44-47]. Thereafter, Plaintiff alleges that “upon information and
belief, the defendants solicited false complaints from citizens about the plaintiff,
taking the unprecedented step of seeking out persons to complain about the
plaintiff,” that “the defendants created falsely negative evaluations about the
plaintiff,” that the defendants attempted to have the plaintiff arrested by warrant
without any probable cause, and that in March, 2014, Temple attempted to “have
Plaintiff’s police officer certification revoked by the police officer standards and
training council.” [Id. ¶¶ 51, 52, 55. 63, 64].
On April 30, 2013, Temple suspended Plaintiff from his employment. [Id. ¶
56]. During the Plaintiff’s suspension, Temple repeatedly ordered Plaintiff to be
subjected to “invasive fitness for duty mental health examinations[,]” even
though Temple had knowledge that Plaintiff was “cleared for duty by a physician”
[Id. ¶ 57]. The Plaintiff’s suspension continued with pay until March 3, 2014; from
March 3, 2014 to April 30, 2014, Plaintiff was suspended without pay. [Id. ¶ 61].
“On May 1, 2014, the defendants placed Plaintiff on paid administrative leave,
where he remained until the [complaint was filed].” [Id.] When the complaint was
filed, Plaintiff was placed on leave without pay. [Id.]
Plaintiff alleges that he had never been subjected to an Internal Affairs
investigation before revealing his “military related disabilities” but does not
allege to whom he revealed a disability, which disability he revealed, and whether
there was any proximity in timing between the revelation and the events that
followed. [Id. ¶ 48]. Plaintiff also alleges that Temple had “repeatedly
commented negatively upon the plaintiff’s status as a veteran, and how this
allegedly interfered with the plaintiff’s ability to perform his job,” and had
frequently used profanity toward the plaintiff. [Id. ¶ 35, 36, 50].
Plaintiff received a Release of Jurisdiction from the Connecticut
Commission on Human Rights and Opportunities (“CCHRO”) and a Right to Sue
Letter from the Equal Employment Opportunities Commission. [Id. ¶ 70]. Plaintiff
filed the original Complaint in this action on July 23, 2014. [Dkt. #1]. On October
7 and October 9, 2014, both the Town Defendants and the State Defendants
moved for a more definite statement from the Plaintiff, noting that it was virtually
impossible to tell what factual allegations the Plaintiff alleged in support of each
respective claim for discrimination and for each respective claim for violations of
constitutional rights. [Dkt. #21; Dkt. #22]. Defendants further noted that because
the Complaint lacked dates for most factual allegations, the statute of limitations
could bar liability on certain of the alleged conduct, and some claims may not
have been timely brought before the CCHRO.
During this time, Plaintiff’s counsel, William S. Palmieri of New Haven,
Connecticut, became aware that Plaintiff had not effected service on the State
Defendants. 1 Rather, it appears that Mr. Palmieri simply mailed a waiver of
service form to the State Defendants, which was not returned. Palmieri was first
notified of his failure to serve the State Defendants during the parties’ Rule 16(b)
Pretrial Conference on October 14, 2014 and counsel’s acknowledgement of this
notification is memorialized in the Rule 26(f) Report. [See Dkt. #26, Rule 26(f)
Report, at 1]. Plaintiff’s counsel was also put on notice when counsel for the
State Defendants filed a Notice of Appearance for the limited purpose of
challenging lack of jurisdiction for failure to effectuate service. [Dkt. #34]. The
State Defendants then raised the issue prominently in their Motion to Dismiss
filed on December 18, 2014. [See Dkt. #35, State Defs.’ Mem. at 6-10]. Plaintiff
has not sought leave of this Court to effectuate late service on any Defendant.
Mr. Palmieri filed an Amended Complaint on November 4, 2011. [Dkt. #28].
Plaintiff’s Amended Complaint is slightly less vague, though no less disorganized
and at times equally incoherent as the original Complaint. All of Plaintiff’s
allegations are simply listed, in no particular order, in Count One. Plaintiff then
includes by reference, in each subsequent Count, every single prior paragraph,
whether relevant or not, and conclusorily states that the Defendant violated a
given statute, constitutional provision or common law tort. Nonetheless, the
1
A Notice of Appearance was first entered on behalf of the Town of Oxford on
September 2, 2014. [Dkt. #9]. The Town has not raised lack of service as a
defense. Defendant Temple returned a waiver of service on September 3, 2014.
[Dkt. #15]. Defendant Semosky returned a waiver of service signed in his
“individual capacity” only on September 8, 2014, [Dkt. #16], and a Notice of
Appearance was filed on his behalf in his individual capacity only on October 3,
2014 [Dkt. #17]. The State Defendants filed a Notice of Appearance on December
18, 2014 for the limited purpose of challenging jurisdiction due to lack of proper
service. [Dkt. #34].
Court considered granting Plaintiff leave to file a Second Amended Complaint,
but determined it would be futile given the facial defects in the previous two
Complaints filed in this action.
Currently before the Court are the Defendants’ Motions to Dismiss the
Plaintiff’s Amended Complaint, in its entirety, for failure to state a claim, for lack
of subject matter jurisdiction for failure to timely present some of his
discrimination claims to the Commission on Human Rights and Opportunities
(“CHRO”), and for lack of personal jurisdiction due to failure to serve the State
Defendants. [Dkt. #35, State Defs.’ Mot. to Dismiss at 1; Dkt. #33 Town Defs.’ Mot.
to Dismiss at 1].
After Defendants moved to dismiss the Amended Complaint, Mr. Palmieri
first asked for, and was granted, a thirty day extension of time nunc pro tunc to
object to the motions to dismiss. Plaintiff then filed an opposition brief—without
leave—one day past the already-extended deadline. The “memorandum of law” is
a fifty-four page document exceeding both the forty page limit for memoranda
under Local Rule 7(a)(2) and the forty-six page limit set forth in this Court’s
Chambers Practices. [See Dkt. #40, Pl’s.. Opp.]. Palmieri’s brief fails to mention
several of the claims brought in the Amended Complaint, and fails to address
many of the arguments raised by Defendants in the Motions to Dismiss, including
failure of service on the State Defendants. Rather, Mr. Palmieri began his
opposition brief by reciting the entire Amended Complaint. In later sections of
the memorandum, Mr. Palmieri ‘copied and pasted’ sections of his Amended
Complaint, without adding substantive argument.
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 ‘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).
In general, the Court’s review on a motion to dismiss pursuant to Rule 12(b)(6)
“is limited to the facts as asserted within the four corners of the complaint, the
documents attached to the complaint as exhibits, and any documents
incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 191 (2d Cir. 2007). The Court may also consider “matters of which
judicial notice may be taken” and “documents either in plaintiffs' possession or
of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Patrowicz v. Transamerica
HomeFirst, Inc., 359 F. Supp. 2d 140, 144 (D. Conn. 2005).
b. Lack of Subject Matter Jurisdiction, Fed. R. Civ. P. 12(b)(1)
“The standards of review for a motion to dismiss under Rule 12(b)(1) for lack
of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are
‘substantively identical.’ Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d.
Cir.2003). However, on a motion to dismiss under Rule 12(b)(1), the party
invoking the Court's jurisdiction bears the burden of proof to demonstrate that
subject matter jurisdiction exists, whereas the movant bears the burden of proof
on a motion to dismiss under Rule 12(b)(6). Id.; Hailey v. Connecticut, No. 3:10CV-1787 VLB, 2011 WL 6209748, at *2 (D. Conn. Dec. 14, 2011).
c. Lack of Personal Jurisdiction for Insufficient Service of Process,
Fed. R. Civ. P. 12(b)(2) and 12(b)(5)
Under Rule 12(b)(2), a party may file a motion to dismiss for lack of Personal
Jurisdiction. Fed. R. Civ. P. 12(b)(2). “A plaintiff bears the burden of showing that
the court has personal jurisdiction over each defendant.” Carney v. Beracha, 996
F. Supp. 2d 56, 60 (D. Conn. 2014) (citing Metro. Life Ins. Co. v. Robertson–Ceco
Corp., 84 F.3d 560, 566 (2d Cir.1996).
“Before a federal court may exercise personal jurisdiction over a defendant,
the procedural requirement of service of summons must be satisfied.” Omni
Capital Intern., Ltd. V. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). “Under
Rule 12(b)(5), a party may file a motion to dismiss due to insufficiency of service
of process.” Rzayeva v. United States, 492 F.Supp.2d 60, 74 (D.Conn.2007) (citing
Fed. R. Civ. P. 12(b)(5); Greene v. Wright, 389 F.Supp.2d 416, 426 n. 2 (D.Conn.
2005)). “A motion to dismiss pursuant to Rule 12(b)(5) must be granted if the
plaintiff fails to serve a copy of the summons and complaint on the defendants
pursuant to Rule 4 of the Federal Rules, which sets forth the federal requirements
for service.” Id. (citing Cole v. Aetna Life & Cas., 70 F.Supp.2d 106, 110
(D.Conn.1999)). “Once validity of service has been challenged, it becomes the
plaintiff's burden to prove that service of process was adequate.” Id. (internal
quotation marks omitted).
IV.
Discussion
a. The Court Lacks Personal Jurisdiction over the State, the State
Police, and Semosky in his official capacity Due to Insufficient
Service of Process
Fed. R. Civ. P. 4(m) requires a plaintiff to serve his complaint on a
defendant within 120 days after the complaint is filed. Fed.R.Civ.P. 4(m).
Although the Court may extend the time for service upon a showing of good
cause by the plaintiff, in the absence of good cause, the Court may deny such
extensions and dismiss the action. See Harper v. City of New York, 424
Fed.Appx. 36, 39 (2d Cir.2011) (“[w]e have interpreted the Rule to give courts both
the discretion to grant extensions of the period of service even where no good
cause has been shown and, in the absence of good cause, to deny such
extensions—that is, a court ‘may grant an extension ... but it is not required to do
so.’ ”) (citing Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir.2007); see also
Bogle–Assegai v. Connecticut, 470 F.3d 498, 508–509(2d Cir.2006) (affirming a
district court's dismissal for failure to timely effect service of process under Rule
4(m) where the plaintiff “made no effort to show good cause for her failure and
never requested an extension of time”).
Plaintiff’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. 5264, which require that service be left with or sent to, via certified mail, the
Attorney General, in Hartford, CT. Despite Plaintiff’s counsel having received
notice on multiple occasions regarding his failure to serve and Mr. Palmieri’s
overt acknowledgment in the October 14, 2014, Rule 26(f) Report that the State,
State Police, or Semosky in his official capacity “ha[d] not been served,” to this
date, the Plaintiff has made no attempt to effectuate service or request leave of
the Court to do so, let alone provide any good cause for such leave. Even if the
Court were inclined to exercise its discretion to overlook the deficiencies in
service of process, late service would be futile, as the State Defendants' Motion to
Dismiss would likely be granted on other grounds, particularly Eleventh
Amendment immunity and qualified immunity. 2
Accordingly, all of Plaintiff’s claims against the State, the State Police, and
Semosky in his official capacity are DISMISSED. The remainder of this opinion
examines the various claims against Temple in his individual and official
capacity, the Town, and Semosky in his individual capacity ONLY.
b. Disability Discrimination Claims Under the ADA and the Rehab Act
To establish a prima facie case of disability discrimination under the ADA,
a plaintiff must show that: (1) his employer is subject to the ADA; (2) he was
disabled within the meaning of the ADA; (3) he was otherwise qualified to perform
the essential functions of his job, with or without reasonable accommodation;
and (4) he suffered adverse employment action because of his disability.
McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013); Sista v. CDC Ixis N.
Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). A prima facie claim under the Rehab
Act requires the same showing as a claim under the ADA, but requires the
Plaintiff to show additionally that his employer receives federal funds. See 29
U.S.C. § 794; Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
i. Actual Disability
2
See Respass v. Murphy, No.3:10–cv–318, 2010 WL 2232674, at *2 (D. Conn. June
2, 2010) (finding that § 1983 claims for damages against defendants in their
official capacities were barred by the Eleventh Amendment which protects state
from suits for monetary relief and also protects state officials sued in their official
capacity) (citations omitted); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71
(1989) (“[A] suit against a state official in his or her official capacity is not a suit
against the official but rather against the official's office”).
The ADA defines “disability” 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). A major life activity is one “of central
importance to daily life,” such as “walking, seeing, and hearing.” Toyota Motor
Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197-98 (2002). In addition, the degree of
impairment must be significant enough to substantially limit that activity. See 42
U.S.C. § 12102(1)(A). When analyzing these claims, “courts have been careful to
distinguish impairments which merely affect major life activities from those that
substantially limit those activities.” Troeger v. Ellenville Cent. Sch. Dist.. 523 F.
App’x 848, 852 (2d Cir. 2013) (citation and quotation marks omitted).
The Plaintiff alleges that he is disabled under the ADA because he is
diagnosed with PTSD and because he has suffered a permanent partial disability
to his knee. [Dkt. #28, Amend. Compl. ¶¶ 17, 53]. Beyond the Plaintiff’s allegation
that he has PTSD and an unspecified “permanent partial disability” to his knee,
he does not describe in any way how his life activities are affected and whether
he requested or was provided accommodation. To the contrary, Plaintiff alleges
that his life activities were seemingly unaffected, arguing that he had been
“cleared . . . to return to work,” that he was “capable of performing his job,” and
that his “work as a police officer has been excellent,” as evidenced by his
nomination for and receipt of “numerous accolades and citations.” [Id. at ¶¶ 2021, 53-54, 59]. Dismissal is appropriate where, as here, a plaintiff fails to allege
specific facts showing that a claimed disability affected one or more major life
activities. See Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 210 (D.
Conn. 2012) (dismissal appropriate where plaintiff Plaintiff only alleged that she
suffered from transverse myelitis “and pled no other facts indicating how this
condition substantially limited one or more major life activities”) (citing Baptista
v. Hartford Bd. of Educ., 427 Fed.Appx. 39, 42 (2d Cir. 2011). Accordingly, the
Plaintiff has not alleged that he suffers from a disability, as that term is defined
under the ADA.
ii. Perceived Disability
Alternatively, the Plaintiff has asserted in conclusory fashion that the
defendants “regarded” him as having a disability. [Id. ¶¶ 18, 19].
Subsequent to the ADA Amendments Act of 2008 (“ADAAA”), an individual
meets the requirement of “being regarded as having” a disability if the individual
establishes: “[(1)] that he or she has been subjected to an action prohibited under
[the ADA] because of an [(2)] actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.”
42 U.S.C. § 12102(3)(A)1. However, an individual does not satisfy the requirement
of “being regarded as having such an impairment” if the impairment is “transitory
and minor.” 42 U.S.C. § 12102(3)(B).
The facts Plaintiff has pled suggesting a perception of disability are few,
and highly contradictory. To establish a perception of Plaintiff as disabled, the
Complaint alleges, in conclusory fashion, that [t]he defendants are aware of the
plaintiff’s disabilities or perceive him as disabled.” [Dkt. #28, Amend. Compl. at ¶
19]. However, “[a] plaintiff cannot establish a prima facie case based on purely
conclusory allegations of discrimination, absent any concrete particulars.” Vogel
v. CA, Inc., 44 F. Supp. 3d 207, 221 (D. Conn. 2014) (citing Ruszkowski v. Kaleida
Health Sys., 422 Fed.Appx. 58, 60 (2d Cir. 2011)).
Plaintiff fails to allege specific facts from which the Court can infer that any
Defendant regarded Plaintiff as disabled because of a knee injury. The Complaint
states that Plaintiff has a “permanent partial disability” to his knee, but does not
specify the injury or its effect. Plaintiff merely alleges that Semosky “was aware”
that Plaintiff “returned to work capable of performing his job” and that Semosky
“was aware that the plaintiff’s physician had cleared the plaintiff to return to
work.” [Id. ¶19]. These are the only two facts that relate to any Defendant’s
perception of Plaintiff’s knee injury and, if anything, they suggest Plaintiff was
not perceived to be disabled. See Bryant v. Greater New Haven Transit Dist., 8 F.
Supp. 3d 115, 141 (D. Conn. 2014) (correspondence received from Plaintiff's
cardiologist stating that Plaintiff was “OK to return to work” did not establish that
Defendants perceived Plaintiff as disabled). From these two vague factual
allegations alone, it is “merely possible, but not plausible” that any Defendant
perceived Plaintiff as disabled or otherwise undertook an adverse employment
action because of plaintiff’s knee. Logan v. SecTek, Inc., 632 F. Supp. 2d 179, 184
(D. Conn. 2009); see also Reeves v. Johnson Controls World Svcs., Inc., 140 F.3d
144, 153 (2d Cir. 1998) (‘the mere fact that an employer is aware of an employee's
impairment is insufficient to demonstrate either that the employer regarded the
employee as disabled or that that perception caused the adverse employment
action.’”).
Similarly, Plaintiff fails to allege specific facts from which the Court can
infer that any Defendant regarded Plaintiff as disabled because of a mental
health-related disability. The Complaint states that “the plaintiff suffers from Post
Traumatic Stress Disorder (“PTSD”) and other conditions associated with active
military combat duty.” [Dkt. #28, Amend. Compl. ¶ 17]. This is the only instance
in the Complaint in which PTSD is mentioned. The Complaint goes on to allege
that Temple “repeatedly ordered the plaintiff to be subjected to unnecessary and
invasive” fitness for duty evaluations. [Id. ¶ 57]. The Court cannot simply infer
from this allegation, however, that (i) Temple knew about Plaintiff’s PTSD, (ii) that
Plaintiff’s PTSD was the reason Temple ordered him to be evaluated, or (iii) that
the evaluations constituted adverse employment actions or otherwise resulted in
Plaintiff’s administrative leave. On the contrary, the Complaint states that “they”
(presumably Temple) “had actual knowledge that [Plaintiff] had been cleared for
duty by a physician.” [Id. ¶ 59]. Once again, this allegation does not establish a
perception of disability. See Bryant, 8 F. Supp. 3d. at 141. These allegations
again fail to cross the line between a possible perception of disability resulting in
adverse employment actions and one that is plausible on its face. Logan, 632 F.
Supp. 2d at 184.
Elsewhere in the Complaint, Plaintiff alleges that defendants evaluated his
performance negatively and subjected him to an internal affairs investigation, for
which he was cleared of any wrongdoing, and that these types of events had
generally not occurred prior to Plaintiff “revealing that he suffered from the
military related disabilities” or his “disclosure of war and job related disabilities.”
[Dkt. #28, Amend. Compl. ¶¶ 48, 52]. Plaintiff, however, never pleads facts
indicating to whom a disability was disclosed and what disability was disclosed.
Moreover, the Court cannot make an inference based upon the timing of the
disclosure and the adverse employment actions, because the Complaint does not
alleged when any disclosure took place. 3
Accepting all of Plaintiff’s factual allegations as true, Plaintiff has failed to
adequately plead an ADA perceived disability claim because the Complaint fails
to allege facts establishing any causal connection between a perceived disability
and an adverse employment action. The Court cannot simply infer that any
Defendant knew about a specific disability, perceived that he was mentally or
physically impaired and that this perception was a cause of any adverse
employment actions. Reeves, 140 F.3d at 153. Although there are actions alleged
in the Complaint, including placing Plaintiff on administrative leave, that could
constitute an adverse employment action in certain contexts, the Complaint does
not allege facts suggesting a causal connection between Plaintiff’s placement on
administrative leave and a perception of disability. See Jordan v. Forfeiture
Support Associates, 928 F. Supp. 2d 588, 607-08 (E.D.N.Y. 2013) (Plaintiff failed to
state a claim under the ADA by offering “only conclusory allegations devoid of
3
Even if the Court could infer a perception of disability from these vague and
conclusory allegations, a negative performance evaluation, by itself, is generally
not an adverse employment action unless it negatively impacts the terms and
conditions of a plaintiff’s employment. See Kaur v. N.Y.C. Health & Hospitals
Corp., 688 F.Supp.2d 317, 332 (S.D.N.Y.2010) (“In the disparate treatment context,
a negative performance evaluation only qualifies as an adverse employment
action if there are accompanying adverse consequences affecting the terms of
employment.”). Plaintiff has not pled facts indicating how his negative
performance evaluations affected the terms and conditions of his employment.
any factual matter rendering plausible her claim that defendant terminated her on
the basis of her carpal tunnel syndrome.”). As such, Plaintiff has failed to state a
plausible claim for relief under the ADA and the Rehab Act. 4 Plaintiff’s ADA and
Rehab Act claims against the remaining defendants are DISMISSED.
c. Age Discrimination Claim Under the ADEA
To establish a prima facie case of age discrimination under the ADEA the
plaintiff must show, inter alia, that “he is a member of the protected class.”
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). The ADEA
explicitly states that its prohibitions “shall be limited to individuals who are at
least 40 years of age.” 29 U.S.C. §631(a); see also Gen. Dynamics Land Sys., Inc.
v. Cline, 540 U.S. 581, 590-91 (2004) (stating that the purpose of the ADEA is “to
protect a relatively old worker from discrimination that works to the advantage of
the relatively young.”); Natale v. Town of Darien, No. 3:97CV583 (AHN), 1998 WL
91073, at *3 (dismissing plaintiff’s ADEA claim because he was under 40 years old
at the time of the alleged age discrimination). The Plaintiff alleged that he was
twenty-nine years old, or younger, during his entire period of employment with
the Town and during all relevant events alleged in the complaint. [Dkt. #28,
Amend. Compl. ¶¶ 5, 16]. Accordingly, Plaintiff’s age discrimination claim under
the ADEA is DISMISSED.
d. Civil Rights Violation under Title VII
4
Defendants have noted that, even if Plaintiff was found to be disabled, his Rehab
Act claim must fail because he did not allege that his employer received federal
funds, as is required to bring a claim under the Rehab Act. See 29 U.S.C. § 794;
see also Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003).
Although Plaintiff alleged that he was discriminated against based on his
age, disability, and military status, he has not alleged that he is within a class of
persons protected from discrimination under Title VII, which applies to
discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. §
2000(e)-(2)(a). Accordingly, Plaintiff’s claim under Title VII is DISMISSED.
e. Discrimination Claim Under CFEPA
i. Age Discrimination Claim Under CFEPA
For the same reasons stated in Section IV(c), to the extent that Plaintiff’s
CFEPA claim is based on age discrimination, the Complaint fails to state a claim.
See, e.g., Zawacki v. Realogy Corp., 628 F. Supp. 2d 274, 280 (D. Conn. 2009)
(stating that “federal law guides analysis of Connecticut's anti-discrimination
statutes, including CFEPA”); Rogers v. First Union Nat. Bank, 259 F. Supp. 2d
200, 209 (D. Conn. 2003) (stating that it “is likely that the Connecticut Supreme
Court . . . define[s] the protected group [of persons under CFEPA] by imposing an
age “floor,” such that all persons over the designated age would constitute the
protected class. As to the specific age the Connecticut Supreme Court would
select, it appears that the Supreme Court would use the same age floor used in
ADEA – age 40.”).
ii. Disability Discrimination Claim Under CFEPA
For the same reasons stated in Section IV(b), to the extent that Plaintiff’s
CFEPA claim is based on disability discrimination, Plaintiff fails to state a claim.
Connecticut courts generally use the same analysis for both ADA and CFEPA
claims. Buck v. AT & T Servs., No. 3:08–cv–1619, 2010 U.S. Dist. LEXIS 63941, at
*1 n. 1, 2010 WL 2640045 (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, 237 Conn. 209,
676 A.2d 844, 853–54 (Conn.1996)).
CFEPA’s definition of disability does include a “regarded as” prong, and
such claims are assessed under the ADA’s “regarded as disability” framework.
Desrosiers v. Diageo N. Am., Inc., 314 Conn. 773, 794 (2014). As discussed in
Section IV(b), Plaintiff has failed to adequately plead a perceived disability claim
under CFEPA because the Complaint fails to allege facts establishing that any
Defendant perceived Plaintiff as disabled because of his knee or his PTSD, and
fails to allege any causal connection between a perceived disability and an
adverse employment action.
f. Military Status Discrimination Claim under USERRA
USERRA provides that “[a] person who is a member of, applies to be a
member of, performs, has performed, applies to perform, or has an obligation to
perform service in a uniformed service shall not be denied initial employment,
reemployment, retention in employment, promotion, or any benefit of
employment by an employer on the basis of that membership, application for
membership, performance of service, application for service, or obligation.” 38
U.S.C. § 4311(a); Morris-Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist.,
423 F.3d 153, 158 (2d Cir. 2005). USERRA imposes liability for violations upon
‘‘any person . . . [who] . . . has control over employment opportunities’’ including
‘‘a person . . . to whom the employer has delegated the performance of
employment-related responsibilities.’’ 38 U.S.C. 4303(4)(A)(i).
To survive a motion dismiss on a USERRA claim, a plaintiff must allege
sufficient facts to establish “a prima facie case of discrimination by showing ...
that his protected status was a substantial or motivating factor in the adverse
[employment] action.” Hunt v. Klein, No. 10 CV 02778 GBD, 2011 WL 651876, at *3
(S.D.N.Y. Feb. 10, 2011), aff'd, 476 F. App'x 889 (2d Cir. 2012) (citing Gummo v.
Village of Depew, 75 F.3d 98, 106 (2d Cir.1996)); see 38 U.S.C. 4311(c)(1).
Discriminatory motivation may be proven through direct or circumstantial
evidence, including “an employer's expressed hostility towards members
protected by the statute together with knowledge of the employee's military
activity, and disparate treatment of certain employees compared to other
employees with similar work records or offenses.” Lovell v. Consol. Edison of
New York, Inc., No. 14-CV-7592 CBA, 2015 WL 2250374, at *4 (E.D.N.Y. May 11,
2015) (citing Woodard v. New York Health & Hosps. Corp., 554 F.Supp.2d 329,
348–49 (E.D.N.Y. 2008)).
There are two alleged facts in the Amended Complaint related to a possible
motive to discriminate on the basis of protected military status. First, Semosky is
alleged to have told the Plaintiff that “people” were “unhappy” that he returned to
his employment as a police officer after his tour of combat duty. Even accepting
this allegation as true, the allegation fails to establish a plausible inference that
Semosky himself was motivated by a discriminatory animus. The “people”
Semosky referred to could simply have been unhappy that they again had to work
with Plaintiff because of, for example, Plaintiff’s repeated refusal to obey orders.
Second, Temple is alleged to have “commented negatively on the Plaintiff’s
status as a veteran and commented on how this interfered with the plaintiff’s
ability to perform his job.” [Dkt. #28, Amend. Compl. ¶ 36.]. Once again,
however, other allegations in Plaintiff’s rambling Complaint contradict any
inference of discriminatory animus on Temple’s part. Plaintiff elsewhere alleges
that Temple “made plain to the plaintiff” that his “animus toward the plaintiff”
was “personal.” [Id. ¶ 35]. These vague and oblique allegations of negative
comments about military service, divorced from the context of any adverse
employment decision or any chronological timeline, fail to plausibly allege
discriminatory animus. See Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111,
115 (2d Cir.2007) (“[t]he more ... oblique the remarks are in relation to the
employer's adverse action, the less they prove that the action was motivated by
discrimination.”).
But even if these comments did reveal a discriminatory animus by either
Temple or Semosky, Plaintiff fails to allege that either Defendant took any
adverse employment action because of a discriminatory animus against veterans.
On the contrary, the Plaintiff explicitly alleges that the Defendants suspended him
from employment “due to his disability of PTSD.” [Dkt. #28, Amend. Compl. ¶ 56.].
In fact, even the most conclusory allegations in the Complaint fail to mention
protected military status as a cause of Plaintiff’s woes; Plaintiff alleges, for
example, that he “has been subjected to an ongoing pattern of harassment,
discrimination, hostility and disparate treatment based upon his disabilities or
perceived disabilities, his age and in retaliation for his protected complaints to
and about the defendant.” [Id. ¶ 66]. Finally, because the Plaintiff does not
include dates with any of his factual allegations, the Court is unable to make an
inference of discriminatory animus based upon the timing of Plaintiff’s return
from military service.
The Court cannot draw a causal inference that negative comments about
Plaintiff’s protected military status reveal a discriminatory animus by any one of
the many Defendants that resulted in any one of the many alleged adverse
employment actions. See Hunt v. Klein, No. 10 CV 02778 GBD, 2011 WL 651876,
at *4 (S.D.N.Y. Feb. 10, 2011) aff'd, 476 F. App'x 889 (2d Cir. 2012) (dismissing
USERRA claim where “Plaintiff's Complaint merely describes various disciplinary
actions taken against him, and notes that Plaintiff is a military service member.”).
Absent any factual allegations allowing for a plausible inference of a nexus
between a discriminatory animus by any one Defendant and a specific adverse
employment action, Plaintiff has failed to state a claim under USERRA.
Accordingly, Plaintiff’s claim of discrimination under USERRA is DISMISSED.
i. Retaliation Claims Under USERRA
“In order to make out a prima facie case of retaliation under USERRA, a
plaintiff must show that (1) he was engaged in protected activity; (2) that the
employer was aware of that activity; (3) that the plaintiff suffered an adverse
employment action; and (4) that there was a causal connection between the
protected activity and the adverse action.” Fink v. City of New York, 129
F.Supp.2d 511, 527 (E.D.N.Y.2001)); 38 U.S.C. 4311(c)(2).
Plaintiff has failed to allege with specificity that he engaged in any
protected activities—such as making complaints about any perceived
discrimination based on his military status. Moreover, Plaintiff has failed to
allege with specificity that any adverse action was taken by Defendants in
retaliation for protected complaints about military status discrimination.
Accordingly, the Court dismisses the plaintiff’s retaliation claim under USERRA.
g. Constitutional Violations brought under 42 U.S.C. § 1983
i. Violation of U.S. Const. Amend. XIV, Equal Protection Claim
To state an claim for an Equal Protection violation, the plaintiff must allege
facts showing that he was treated differently from other similarly situated
individuals and the reason for the different treatment was based on
“impermissible considerations such as race, religion, intent to inhibit or punish
the exercise of constitutional rights, or malicious or bad faith intent to injure a
person.” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (internal
quotation marks and citation omitted). Plaintiff has not alleged facts showing
that he was treated differently from similarly situated employees or that his
treatment was based on impermissible considerations.
The plaintiff also can assert an equal protection claim on a “class of one”
theory. To state a valid equal protection “class of one” claim, the plaintiff must
allege, first, that he has been intentionally treated differently from others similarly
situated and, second, that there is no rational basis for the difference in
treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The plaintiff
must allege an “extremely high” level of similarity with the person to whom he is
comparing himself. Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005),
overruled on other grounds, Appel v. Spiridon, 531 F.3d 138, 139-40 (2d. Cir.
2008). The plaintiff has identified no other employee who was treated differently
under similar circumstances. Thus, he fails to state an equal protection class of
one claim. See, e.g., Page v. Lantz, No. 3:03cv1271, 2007 U.S. Dist. LEXIS 46041,
at *16-17 (D. Conn. June 26, 2007) (holding that class of one equal protection
claim fails as a matter of law where plaintiff did not allege that similarly situated
inmates were treated differently under similar circumstances). The plaintiff’s
equal protection claim is DISMISSED.
ii. Violation of U.S. Const. Amend. V, Due Process Claim
1. Procedural Due Process
In analyzing procedural due process claims, courts must determine: (i)
whether a plaintiff possessed a protected liberty or property interest; and (ii) what
process a plaintiff was due before any deprivation of such interest. Roman v.
Valleca, No. 3:11CV1867 (VLB), 2012 WL 4445475, at *12 (D. Conn. Sept. 25, 2012)
(citing Sealed v. Sealed, 332 F.3d 51, 55 (2d Cir. 2003)).
In the context of employment, “a property interest arises only where the
state is barred, whether by statute or contract, from terminating (or not renewing)
the employment relationship without cause.” Legg v. Dellavolpe, 228 F.Supp.2d
51, 61 (D.Conn.2002) (citing S & D Maintenance Co., Inc. v. Goldin, 844 F.2d 962,
967 (2d Cir.1988)). In his Amended Complaint, Plaintiff has only alleged that he
was placed on administrative leave without pay and has not alleged that he was
barred from termination without cause by statute. Defendants have noted that
this allegation is insufficient to state a recognizable property interest. In his
opposition memorandum, Mr. Palmieri did not address his procedural due
process claim. The Court therefore considers Plaintiff’s procedural due process
claim to be both abandoned 5 and futile. Plaintiff’s procedural due process claim
is DISMISSED.
2. Substantive Due Process
To bring a substantive due process claim against Semosky, Plaintiff must
(1) allege the existence of some constitutionally protected interest, and (2) allege
action by Semosky that “was so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” Benzman v. Whitman, 523 F.3d
119, 126 (2d Cir. 2008) (internal quotations omitted). A substantive due process
claim may be dismissed if it is “subsumed by other constitutional claims, or ...
does not amount to a substantive due process violation as a matter of law.”
Roman v. Valleca, No. 3:11CV1867 (VLB), 2012 WL 4445475, at *10 (D. Conn. Sept.
5
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).
25, 2012). In addition, if factual allegations shock the conscience only insofar as
they constitute specific constitutional violations, plaintiffs may not seek redress
under substantive due process. Id. (citing Velez v. Levy, 401 F.3d 75, 94 (2d Cir .
2005)).
Plaintiff has not specified which actions of which Defendants give rise to a
substantive due process claim separate and apart from his other constitutional
claims. In opposition to the Motion to Dismiss, Mr. Palmieri argued that
“Semosky and Temple engaged in a series of outrageous actions against the
plaintiff, designed to break him and to deprive him of his constitutionally
protected right to employment . . . .” Mr. Palmieri then ‘copied and pasted’ all of
the factual allegations in the Complaint. [See Dkt. #40, Pl’s. Opp. at 27-32].
Nonetheless, read liberally, Plaintiff's substantive due process claims do
not allege facts that are so egregious as to “shock the conscience” as a matter of
law. See Roman, 2012 WL 4445475, at *11 (dismissing substantive due process
claim where public employee alleged that his employer “fabricated incidents of
misconduct in order to impugn the Plaintiff's reputation, causing him to be
reprimanded in writing, transferred, and suspended.”); Richards v. Connecticut
Dept. of Corr., 349 F.Supp.2d 278, 293 (D.Conn.2004) (government-employer's
conduct did not shock the conscience where defendant yelled, swore at, and
berated plaintiff, who was then placed on leave).
Plaintiffs substantive due process claims are DISMISSED.
iii. Violation of U.S. Const. Amend. I, Freedom of Speech Claim
Plaintiff contends that Defendants Semosky and Temple, in their individual
capacities, retaliated against him for the exercise of his right to freedom of
speech under the First Amendment.
“In the First Amendment context, ‘the State has interests as an employer in
regulating the speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the citizenry in
general.’” Ross v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012) (quoting Pickering v.
Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968)).
“The government, as an employer, has a legitimate interest in regulating the
speech of its employees to promote the efficiency of its public services.” Mandell
v. County of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003)(citations and internal
quotation marks omitted).
When public employees make statements pursuant to their official duties,
the employees are not speaking as citizens, even if such speech regards a matter
of public concern. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, to
determine whether the speech at issue is constitutionally protected, the court
must first decide whether the plaintiff was speaking as a ‘citizen,’ rather than as a
public employee. Brady v. Cnty. of Suffolk, 657 F. Supp. 2d 331, 342 (E.D.N.Y.
2009) (quoting Garcetti, 547 U.S. at 411-12). “If the answer is ‘no,’ then no First
Amendment claim arises, and that ends the matter.” Caraccilo v. The Village of
Seneca Falls, N.Y., 582 F.Supp.2d 390, 405 (W.D.N.Y. 2008).
Therefore, a prima facie First Amendment retaliation claim requires the
Plaintiff to prove that: “(1) the speech at issue was made as a citizen on matters
of public concern rather than as an employee on matters of personal interest; (2)
he or she suffered an adverse employment action; and (3) the speech was at least
a substantial or motivating factor in the adverse employment action.” Johnson v.
Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (internal quotation marks and citations
omitted); Everitt v. DeMarco, 704 F. Supp. 2d 122, 129 (D. Conn. 2010).
The Amended Complaint does not specify the specific ‘speech’ that
Plaintiff alleges caused the defendants to retaliate against him. See [Dkt. 28,
Amend. Compl. at Count Six]. However, the Plaintiff’s memorandum in
opposition to the Motions to Dismiss identifies two separate incidents of speech:
(1) Plainitff’s written complaint to the State Police regarding Semosky’s conduct,
and (2) Plaintiff’s statement that Temple’s order not to arrest certain persons for
the crime of driving under the influence was “unlawful, and dangerous, and that
he would not do so.” See [Dkt. 40, Pl.’s Opp. at 42-43]. Neither example proffered
by Plaintiff’s counsel has identified specific, constitutionally-protected speech
from which this Court can find a plausible claim of First Amendment retaliation.
Despite being given an opportunity to amend his Complaint, Mr. Palmieri
has not detailed what complaints Plaintiff made to the State Police, what
problems he identified with Semosky’s behavior and what changes he sought
from Semosky’s superiors. However, assuming that Plaintiff complained to the
State Police generally about the types of conduct alleged in the Complaint, such
complaints would not be constitutionally-protected speech.
“When a public employee raises complaints or concerns up the chain of
command at his workplace about his job duties, that speech is undertaken in the
course of performing his job.” Caraccilo v. Vill. of Seneca Falls, N.Y., 582 F.
Supp. 2d 390, 410-11 (W.D.N.Y. 2008). “Speech can be part of a public employee’s
duties even if it is not required by, or included in, the employee’s job description,
or in response to a request by the employer.” Weintraub v. Bd. of Educ. of City
Sch. Dist. of City of New York, 593 F.3d 196, 202 (2d Cir. 2010). Whether speech is
"pursuant to" a Plaintiff’s official duties turns on whether the speech “owes its
existence to a public employee's professional responsibilities," and such
professional responsibilities are to be interpreted broadly. Garcetti, 547 U.S. at
421; Matthews v. Lynch, No. 3:07-CV-739 WWE, 2011 WL 1363783 (D. Conn. Apr.
11, 2011) aff'd, 483 F. App'x 624 (2d Cir. 2012). The relevant inquiry is whether the
employee’s speech is “the kind of activity engaged in by citizens who do not
work for the government.” Garcetti, 547 U.S. at 423.
Construing the first allegation liberally, Plaintiff’s statements to the State
Police concerned his interactions with his supervisor as an employee, during the
course of his employment, and the manner in which Semosky’s conduct affected
his police work. [See Dkt. #28, Amend. Compl. at 30] (stating that the Plaintiff’s
complaint was about Semosky’s conduct concerned the “provision of police
services”). Plaintiff’s complaints to the State Police, therefore, appear to have
involved nothing more than an “employee grievance, for which there is no
relevant citizen analogue.” Weintraub, 593 F.3d at 198-99. Such complaints are
not constitutionally-protected. See Paola v. Spada, 372 F. App'x 143 (2d Cir. 2010)
(police officer’s “complaints about his supervisor's alleged mismanagement and
potentially unlawful conduct not entitled to First Amendment protection”).
Similarly, Plaintiff’s refusal to obey Temple’s order concerning
enforcement of driving under the influence laws and his statement – made
privately to Temple – that the order was “unlawful, and dangerous, and that he
would not do so” has not identified constitutionally protected speech.
First, the subject matter of his speech related to the performance of
Plaintiff’s duties as a police officer. See Paola, 372 F. App'x at 144 (police
officer’s “oral and written complaints about his supervisor's alleged
mismanagement and potentially unlawful conduct were made pursuant to [his]
official duties”); Whitehead v. City of New York, 953 F. Supp. 2d 367, 375 (E.D.N.Y.
2012) (police officer’s speech related to his job duties when complaining about,
and refusing “to comply with [an] illegal quota policy”); Brady v. Cnty. of Suffolk,
657 F. Supp. 2d 331, 342 (E.D.N.Y. 2009) (police officer was speaking about job
duties when raising concerns about a county’s alleged practice of not issuing
tickets for traffic violations to off duty police officers).
Second, Plaintiff raised his complaints internally and up the chain-ofcommand to Temple, rather than placing his concerns into the public discourse.
Such internal complaints by police officers, even where the subject matter
touches on issues of public safety or integrity of office, are not constitutionally
protected speech. See Paola, 372 F. App'x at 144 (police officer’s complaints to
Internal Affairs not protected speech); Healy v. City of New York Dep't of
Sanitation, 286 F. App'x 744, 746 (2d Cir. 2008) (report of corruption made to
direct superior without any external communication was not protected speech);
Whitehead, 953 F. Supp 2d at 375 (no protected speech where plaintiff “confined
his opposition to and criticism of [a quota policy] within the NYPD and never
attempted to communicate his complaints to the public”).
Finally, courts have been particularly wary of similar First Amendment
claims where, as here, the subject matter of the complaints concern “special
knowledge gained through the Plaintiff’s employment.” Brady v. Cnty. of Suffolk,
657 F. Supp. 2d 331, 343 (E.D.N.Y. 2009); see Healy, 286 Fed.Appx. at 746
(evidence of corruption uncovered during inventory check conducted as part of
police officer’s official duties); Whitehead, 953 F. Supp 2d at 375 (plaintiff’s
objection to quota policy raised “issues that he came to learn as part of his duties
and responsibilities as a police officer”).
Plaintiff has failed to allege that he was speaking as a ‘citizen,’ rather than
as a public employee in regard to both of his alleged complaints to Temple and to
the State Police. See Garcetti, 547 U.S. at 411-12. Even if he had been speaking
as a private citizen, Plaintiff’s complaints were primarily calculated to redress
personal grievances and disliked employment conditions. See Jackler v. Byrne,
658 F.3d 225, 236 (2d Cir. 2011) (“Speech that, although touching on a topic of
general importance, primarily concerns an issue that is ‘personal in nature and
generally related to [the speaker’s] own situation,’ such as his or her
assignments, promotion, or salary, does not address matters of public
concern.”); Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008)(stating
that “the heart of the matter is whether the employee’s speech was calculated to
redress personal grievances or whether it had a broader public purpose”).
Plaintiff’s First Amendment retaliation claim is DISMISSED.
h. Municipal Liability Claim
To establish municipal liability under Section 1983, a plaintiff must plead
and prove “(1) an official policy or custom that (2) causes the plaintiff to be
subject to (3) a denial of a constitutional right.” Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir. 1983). Because plaintiff has not stated a plausible claim for relief
for violations of any constitutional right in his various Sec. 1983 claims, Plaintiff
similarly has not stated a claim against the Town of Oxford. Plaintiff’s claim for
municipal liability is DISMISSED.
i. Intentional Infliction of Emotional Distress (“IIED”) Claim
Because Plaintiff has failed to raise a claim under federal law, the Court
lacks subject matter jurisdiction over Plaintiff’s claim for intentional infliction of
emotional distress (“IIED”) under Connecticut law. But even if one of Plaintiff’s
various federal claims stated a claim for relief such that this Court could exercise
supplemental jurisdiction over the IIED claim, Plaintiff has failed to state a claim
for IIED. 6
6
The Court notes that in Connecticut, governmental immunity bars intentional
tort claims against municipalities. See CONN. GEN. STAT. § 52-557n(a)(2)(A);
O'Connor v. Bd. of Educ., 877 A.2d 860, 863 n.4 (Conn. App. Ct. 2005), cert.
denied, 882 A.2d 675 (Conn. 2005); Miles v. City of Hartford, 719 F. Supp. 2d 207,
218 (D. Conn. 2010) (“The Connecticut Supreme Court has clearly held that a
political subdivision of the state is immune to suit based on intentional infliction
To succeed on a claim for intentional infliction of emotional distress under
Connecticut law, 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, 510 A.2d 1337, 1342 (Conn. 1986)).
Plaintiff alleges that the Defendant Semosky intentionally inflicted
emotional distress by swearing at the Plaintiff, “belittling” the Plaintiff, physically
intimidating the Plaintiff, throwing pieces of furniture at the workplace,
commenting negatively on Plaintiffs age, military status, and knee disability, and
“intentionally subjecting the Plaintiff to strenuous activity related to his knee.”
[Dkt. #28, Amend. Compl. at ¶¶ 27-29, 32, 36, 43, 51-52, 54-57, 59, 62-65.]
Plaintiff alleges that Defendant Temple intentionally inflicted emotional
distress by placing Plaintiff on administrative leave, subjecting Plaintiff to
psychological evaluations, Temple’s alleged solicitation of false complaints from
citizens about Plaintiff, the alleged creation of falsely negative evaluations about
the Plaintiff, a failed attempt to have the Plaintiff arrested by warrant without any
probable cause, and a failed attempt to have Plaintiff’s police officer certification
revoked by the police officer standards and training board. [Id.].
of emotional distress by an employee.”). Therefore, could only properly bring an
IIED claim against Semosky and Temple in their individual capacities.
Even accepting all of the above facts as true, Plaintiff has failed to allege
that the conduct of either Temple or Semosky was “extreme and outrageous” and
has therefore failed to state a claim for IIED. The Connecticut Supreme Court has
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., 757 A.2d 1059, 1062 (Conn. 2000) (internal
quotations and citations omitted).
The Connecticut Supreme Court’s opinion in Appleton is controlling here,
as the facts alleged there are strikingly similar to the allegations against
defendant Temple. In Appleton, a teacher failed to state a claim for IIED when she
alleged the principal placed her on administrative leave, subjected 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 Appleton, 757 A.2d at 1061–63. Similarly, Plaintiff has failed to
state claim against Temple with his allegations of placement on administrative
leave, psychological evaluations, solicitation of falsely negative criticism from
others and reporting of information to a police certification board.
Plaintiff’s allegations against Semosky similarly fail to state a claim for
IIED. Generally, “insults, verbal taunts, threats, indignities, annoyances, petty
oppressions or conduct that displays bad manners or results in hurt feelings,” do
not constitute extreme and outrageous conduct. Tomby v. Cmty. Renewal Team,
Inc., No. 3:09cv1596(CFD), 2010 WL 5174404, *7 (D.Conn. Dec. 15, 2010).
Plaintiff’s allegations against Semosky of physical “intimidation”, profanity,
throwing of furniture and humiliation at the workplace are similar to allegations
dismissed in prior cases of IIED brought by former employees. See Engle v.
Bosco, 2006 WL 2773603, at *3 (Conn. Super. Ct. 2006) (allegations of profanity,
spitting and demeaning behavior insufficient to state a claim); DeLaney v.
Institute of Living, 2002 WL 1559043, at *4 (Conn. Super. Ct. 2002) (IIED claim
dismissed where plaintiff alleged abusive language, “contemptuous behavior”
and humiliating orders); Daigneault v. Consolidated Controls/Eaton Corp., 2002
WL 1539572, at *5 (Conn. Super. Ct. 2002) (IIED claim dismissed where supervisor
was alleged to have physically bullied the plaintiff in part by massaging his
shoulders and giving him bear hugs)
Plaintiff’s claim for intentional infliction of emotional distress is
DISMISSED.
V.
Conclusion
For the foregoing reasons, the Court GRANTS the State Defendants’ Motion
to Dismiss the Amended Complaint in its entirety, as all Defendants. Further, the
Court GRANTS the Town Defendants’ Motion to Dismiss the Amended Complaint
in its entirety, as to all Defendants.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 30, 2015
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