Azcona v. Wal-Mart Stores, Inc.

Filing 24

RULING and ORDER granting in part and denying in part 18 Motion to Dismiss. Signed by Judge Robert N. Chatigny on 9/30/2015. (Panchenko, I)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MIGUEL AZCONA

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Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant.

Case No. 3:15-CV-00096 (RNC)

RULING AND ORDER
Plaintiff brings this suit against his former employer, WalMart Stores, Inc., alleging that it discriminated against him on
the basis of his disability.

Wal-Mart has moved to dismiss.

For

the reasons that follow, the motion is granted in part and denied
in part.
I. Background
Plaintiff, who is deaf, was hired by Wal-Mart as a
maintenance employee in March 2013.
7.

Compl. (ECF No. 1-1) ¶¶ 2,

To communicate with his supervisors, plaintiff used his phone

to type out messages or wrote messages on a pad of paper.
10.

Id. ¶

He also gestured and acted out what he intended to

communicate.

Id.

A month after plaintiff was hired, in April 2013, Wal-Mart
changed its policy and no longer permitted plaintiff to use his
phone to type out messages.

Id. ¶ 13.

Around this time, the

store manager began complaining that plaintiff's sneakers were

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making "too much noise" and because of this he was relegated to
certain areas of the store and isolated from customers and other
co-workers.

Id. ¶¶ 14-16.

Plaintiff was also prohibited from

leaving the store during his breaks and lunch.

Id. ¶ 15.

Plaintiff felt like an outcast and although he could not hear, he
could tell his managers were disparaging him and his co-workers
were mocking him by pointing at him and moving their mouths to
simulate talking without saying words.

Id. ¶¶ 19-20.

In an attempt to ameliorate the sneaker situation, plaintiff
tried four different pairs but was nonetheless informed that his
co-workers were laughing at and gossiping about him.
22.

Id. ¶¶ 21-

Plaintiff's managers continued to complain that his sneakers

made too much noise.

Id. ¶ 26.

When plaintiff asked family

members if his sneakers were noisy he was assured they were not.
Id. ¶ 28.
Plaintiff was promoted to supervisor in August or September
2013 but the comments about his noisy sneakers persisted.
31-32.

Id. ¶

In addition, Wal-Mart's managers began making

announcements over the loudspeaker and after these announcements
finished, customers would immediately walk away from plaintiff.
Id. ¶ 35.

Two of plaintiff's direct supervisors stopped

communicating with him and Wal-Mart began deducting money out of
his paycheck for cleaning supplies that plaintiff used to cleanup messy aisles and paper that plaintiff used to print his

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schedule and pay stubs.

Id. ¶ 37, 39-40.

As a result of the

complaints, disparagement and mockery, plaintiff resigned from
Wal-Mart on January 5, 2014.

Id. ¶ 42.

Plaintiff's complaint alleges that Wal-Mart violated the
Connecticut Fair Employment Practices Act ("CFEPA"), Conn. Gen.
Stat. §§ 1201, et seq., and the Americans With Disabilities Act
("ADA"), 42 U.S.C. §§ 1201, et seq.

Wal-Mart has moved to

dismiss the complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).
II. Standards of Review
Under Rule 12(b)(1), "[a] case is properly dismissed for
lack of subject matter jurisdiction . . . when the district court
lacks the statutory or constitutional power to adjudicate it."
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff
must establish by a preponderance of the evidence that the court
has subject matter jurisdiction over the complaint.

Id.

Courts

evaluating Rule 12(b)(1) motions "may resolve the disputed
jurisdictional fact issues by referring to evidence outside the
pleadings, such as affidavits."

Zappia Middle East Contr. Co.

Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
A Rule 12(b)(6) motion, on the other hand, tests a
complaint's legal sufficiency.

To withstand such a motion, "a

complaint must contain sufficient factual matter, accepted as

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true, to 'state a claim to relief that is plausible on its
face.'"

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
under Rule 12(b)(6) occurs in two steps.

Review

First, the court must

separate the complaint's well-pleaded factual allegations from
its legal conclusions.

Id.

Well-pleaded facts are accepted as

true and viewed in the light most favorable to the plaintiff.
Id.

"Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements," must be disregarded.
Id.

Second, the court must determine whether the well-pleaded

facts in the complaint support a plausible inference that the
plaintiff is entitled to relief.

Id. at 679.

This standard "is

not akin to a 'probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted unlawfully."
Id. at 678 (quoting Twombly, 550 U.S. at 556).

A complaint

containing facts "that are 'merely consistent with' a defendant's
liability . . . 'stops short of the line between possibility and
plausibility of entitlement to relief.'"

Id. (quoting Twombly,

550 U.S. at 557).
III. Discussion
Plaintiff has agreed to voluntarily withdraw his CFEPA
aiding and abetting claim (Count Two).
20) at 8.

See Pl.'s Opp. (ECF No.

Following this, all that remains is plaintiff's CFEPA

claim (Count One) and his ADA claim (Count Three).

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A.

Exhaustion

Wal-Mart argues that plaintiff's CFEPA claim (Count One)
should be dismissed for lack of subject matter jurisdiction
because plaintiff did not exhaust administrative remedies at the
Commission on Human Rights and Opportunities (CHRO).1

"Before

bringing a CFEPA claim in federal court, a plaintiff must first
exhaust her administrative remedies."

Ghaly v. Simsarian, 3:04-

CV-01779 (ATW), 2009 WL 801636, at *5 (D. Conn. March 26, 2009).
Plaintiff does not contend that his CFEPA claim was presented to
the CHRO.

Rather, he argues that his claim should be excepted

from exhaustion because he seeks attorneys' fees, compensatory
damages and punitive damages, which the CHRO lacks authority to
grant.
In support of his position, plaintiff cites two cases in
which the Connecticut Superior Court excused exhaustion when the
complaint sought relief the CHRO is not authorized to provide.
See Dinegar v. Univ. of New Haven, No. 378256, 1995 WL 749533, at
*1 (Conn. Super. Ct. Nov. 30, 1995); Cross v. Nearine, No. CV94
0538675S, 1995 WL 91411 (Conn. Super. Ct. Feb. 17, 1995).
cases are no longer good law.

These

See Hayes v. Yale-New Haven

Hospital, 82 Conn. App. 58, 59 n.2 (2004)(CFEPA claim properly
dismissed due to plaintiff’s failure to obtain release from the

1
Wal-Mart does not argue that plaintiff failed to exhaust
his ADA claim.

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CHRO); Li Li v. Canberra Inds., No. CV040489573, 2010 WL 3326744,
at *11 (Conn. Super Ct. July 23, 2010)(the appellate court
decision in Hayes resolved a split among the trial courts and
made it clear that a claimant must first file a complaint with
the CHRO before initiating a private action).
Accordingly, the CFEPA claim is dismissed.
B.

Failure to State a Claim

Wal-Mart argues that plaintiff's ADA claim, which alleges
both constructive discharge and a hostile work environment, must
be dismissed for failure to state a claim on which relief can be
granted.2

To state a claim for constructive discharge, a

plaintiff must allege that: (1) the defendant intentionally
created an intolerable work environment and (2) a reasonable
person subjected to the working conditions experienced by the

2
Plaintiff's opposition states that although the Second
Circuit has yet to determine whether the ADA gives rise to a
hostile work environment claim, many courts within the Circuit
have found that it does. See Giambattista v. Am. Airlines, Inc.,
584 F. App'x 23, 25 n.2 (2d Cir. 2014) ("[T]his court has not yet
decided whether a hostile work environment claim is actionable
under the ADA . . . ."); Dollinger v. N.Y. State Ins. Fund, No.
3:14-CV-00908 (MAD/DEP), 2015 WL 1446892, at *12 (N.D.N.Y. Mar.
30, 2015) (recognizing ADA hostile work environment claim); Lewis
v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 3:12-cv-406
(JBA), 2015 WL 106057, at *15 (D. Conn. Jan. 7, 2015) (same).
Because Wal-Mart does not contest this, this Court will assume
for the purpose of this motion that such a claim is actionable.

Plaintiff's opposition also states that Wal-Mart is
vicariously liable for the actions of its co-workers and
supervisors. Because Wal-Mart does not contest this, this Court
will assume for the purpose of this motion that Wal-Mart may be
held vicariously liable.
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plaintiff would have felt compelled to resign.
Street, Ltd., 148 F.3d 149, 161 (2d Cir. 1998).

Kirsch v. Fleet
To state a

hostile work environment claim, a plaintiff must allege that
"based on the totality of circumstances, the workplace was
permeated with discriminatory intimidation, ridicule, and insult,
that [was] sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment."

Lewis v. Boehringer Ingelheim

Pharmaceuticals, Inc., No. 3:12-cv-406 (JBA), 2015 WL 106057, at
*14 (D. Conn. Jan. 7, 2015) (quoting De La Cruz v. Guilliani, No.
00CIV7102(LAK)(JCF), 2002 WL 32830453, at *9 (S.D.N.Y. Aug. 26,
2002)).

Plaintiff has plausibly alleged both a constructive

discharge and a hostile work environment claim.
Taking the allegations in the complaint as true, for a
period of approximately nine months Wal-Mart managers or
employees: (1) precluded plaintiff from typing out messages on
his phone, one of his only means of communication, Compl. (ECF
No. 1-1) ¶ 13; (2) complained about and ridiculed him because of
his noisy sneakers, making him feel like an outcast, id. at ¶¶
19-22, 29-30; (3) prohibited him from going outside for lunch and
accessing certain parts of the store and reprimanded him for
walking outside certain designated areas, id. ¶ 16; (4) deducted
money from his paychecks for cleaning supplies and paper he used
in connection with his work, id. ¶¶ 39-41; (5) made disparaging

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comments about him over the loudspeaker, id. ¶ 35; (6) laughed at
him and mocked him by pointing at him and moving their lips to
simulate talking without saying words, id. ¶¶ 14-15, 19-20, 26,
37; and (7) eventually stopped communicating with him altogether,
id. ¶¶ 39-40.

A reasonable person could infer from the totality

of these facts that plaintiff "was not wanted as an employee and
that he was going to be forced out of" his employment.

Terry v.

Ashcroft, 336 F.3d 128, 152 (2d Cir. 2003); see Chertkova v.
Conn. General Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996)
("Certain factors, standing alone, are legally insufficient to
support constructive discharge. . . . But the effect of a number
of adverse conditions in the workplace is cumulative.").
Similarly, a reasonable person could infer that plaintiff's
workplace was "permeated with discriminatory intimidation,
ridicule, and insult that [was] sufficiently severe or pervasive
to alter the conditions of [plaintiff]'s employment."
2015 WL 106057, at *14.

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Lewis,

III. Conclusion
Accordingly, defendant's motion to dismiss is hereby granted
in part and denied in part.

Count one is dismissed without

prejudice and count two is deemed withdrawn.

The action will

proceed as to count three.
So ordered this 30th day September, 2015.
/s/ RNC
Robert N. Chatigny
United States District Judge

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