Pelletier v. Purdue Pharma LP

Filing 40

ORDER. Defendant's motion to dismiss (Doc. #18) is GRANTED in part. Plaintiff's federal sex discrimination claim is dismissed without prejudice to his filing of an amended complaint within 14 days of this order. Because defendant has raised matters outside the pleadings, the portion of the motion to dismiss concerning the Release is converted to a motion for summary judgment. Plaintiff may file any opposition to defendant's motion for summary judgment and any supporting documents on or before July 28, 2016, and defendant may file any reply to plaintiff's submission on or before August 12, 2016. Signed by Judge Jeffrey A. Meyer on 6/29/16. (Adriance, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

GARY B. PELLETIER,
Plaintiff,
No. 3:15-cv-233 (JAM)

v.
PURDUE PHARMA L.P.,
Defendant.

RULING GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS
Plaintiff Gary Pelletier filed a discrimination claim alleging that he suffered age and
sexual orientation discrimination while still employed by defendant Purdue Pharma L.P.
Roughly a month later, he was terminated. He then filed a second discrimination complaint for
wrongful termination and retaliation.
Defendant has filed a motion to dismiss, arguing that all of plaintiff‟s claims are either
released as part of a severance agreement, unexhausted, or fail to plausibly raise a legitimate
claim. Because I conclude that the severance agreement cannot be considered at this stage, I will
deny the motion to dismiss as to plaintiff‟s age discrimination, wrongful termination, and
retaliation claims, subject to their reconsideration as a motion for summary judgment. Because
plaintiff does not otherwise state a plausible claim for relief with respect to sex discrimination
under Title VII or with respect to sexual orientation or age discrimination under state law, I will
grant the motion to dismiss without prejudice as to those claims.
BACKGROUND
The following are the facts as alleged by plaintiff in his federal court and EEOC
complaints, construed liberally. Plaintiff is a gay man and worked for defendant as a Senior
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Analyst. He was 49 years old when he was terminated. Sometime before his termination, in
roughly April 2013, plaintiff‟s partner applied for a job with defendant and was denied.
Plaintiff‟s father then passed away, and the newspaper obituary identified plaintiff and his
partner. Plaintiff alleges that it was only after considering his partner‟s job application and
reading the obituary that defendant became aware that he was gay.
In July 2013, plaintiff‟s superior, Michael Donahy, met with plaintiff and told him “that
they could get younger people to take [his] job.” Doc. #1 at 3. At this time, plaintiff claims he
was “written up” by Donahy as a disciplinary measure. In January 2014, plaintiff dual-filed a
complaint (“the January Complaint”) with the Connecticut Commission on Human Rights and
Opportunities (CHRO) and the U.S. Equal Employment Opportunity Commission (EEOC),
alleging that this “write up” was the result of age and sexual orientation discrimination and the
beginning of a plan to create a paper trail to justify his termination.
In February 2014, defendant terminated plaintiff‟s employment, purportedly as part of a
general company “restructuring.” In August 2014, plaintiff filed a second complaint (“the August
Complaint”) with the CHRO and EEOC, alleging retaliation for filing his original complaint and
wrongful termination. He received a right-to-sue letter from the EEOC regarding the January
Complaint on November 24, 2014, and a right-to-sue letter from the EEOC regarding the August
Complaint on February 12, 2015. He commenced this action pro se on February 19, 2015. He
filled out a federal court complaint on a pre-printed form for pro se litigants, alleging federal
claims of discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., and age under the Age Discrimination in Employment Act of 1967, 29
U.S.C. §§ 621 et seq.1

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Plaintiff also alleged race discrimination in his complaint, but has withdrawn that claim.

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As part of its motion to dismiss, defendant alleges the following facts that are not set
forth in the complaint. At the time it notified plaintiff that he would be terminated, it offered
plaintiff the chance to sign a document entitled “Agreement and General Release” (the
“Release”) in exchange for a severance payment of $22,566.15 plus benefits. The Release
provided that
With the exception of the allegations raised in the complaint currently
pending before the Connecticut Commission on Human Rights and
Opportunities . . . and the Equal Employment Opportunity
Commission . . . , Employee, of Employee‟s own free will, knowingly
and voluntarily releases and forever discharges the Company . . . from
any and all liability to Employee for actions . . . whatsoever, in law or
equity, which, Employee . . . may now have . . . against The Purdue
Associated Entities as of the date of the execution of this Agreement, .
. . . [T]his Agreement . . . shall release The Purdue Associated Entities
from any and all matters arising out of Employee‟s employment by
Purdue and the cessation of said employment. . . including, but not
limited to, any alleged violation of (i) Title VII of the Civil Rights Act
of 1964, as amended; . . . (iii) the Age Discrimination in Employment
Act of 1967 . . . (x) any other federal, state or local civil or human
rights laws, whistleblowing or retaliation laws . . . .
Doc. #19-1 at 6-7. The email informing plaintiff that he was being terminated and offering the
severance in exchange for signing the Release also encouraged him to the consult with a lawyer
before signing the document and gave him 45 days to make a decision. Plaintiff signed the Release in
April 2014, and he received severance payments in exchange. Defendant further alleges that plaintiff
received a right-to-sue letter from the CHRO with respect to the January Complaint on September
19, 2014.
DISCUSSION
The background principles governing a Rule 12(b)(6) motion to dismiss are well established.
The Court must accept as true all factual matters alleged in a complaint, although a complaint may
not survive unless its factual recitations state a claim to relief that is plausible on its face. See, e.g.,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir.

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2014). Moreover, “„[a]lthough a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice‟” to survive a motion to
dismiss. Ibid. (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)); see also Krys v. Pigott, 749
F.3d 117, 128 (2d Cir. 2014) (noting that court is “not bound to accept as true a legal conclusion
couched as a factual conclusion” or “to accept as true allegations that are wholly conclusory”)
(citations and internal quotation marks omitted).
To be sure, “[p]ro se complaints „must be construed liberally and interpreted to raise the
strongest arguments that they suggest.‟” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)
(quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). But even a pro se
complaint must plead enough facts to state a plausible claim for relief. “We have noted our obligation
to construe pro se complaints liberally, even as we examine such complaints for factual allegations
sufficient to meet the plausibility requirement.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).
In short, my role in reviewing the motion to dismiss is to determine whether the complaint—apart
from any of its conclusory allegations and construing its pro se allegations liberally—sets forth
sufficient facts to state a plausible claim for relief.
The Release
“In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to
facts stated on the face of the complaint, in documents appended to the complaint or incorporated in
the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v.
Israel Discount Bank, 199 F.3d 99, 107 (2d Cir. 1999); Thomas v. Goord, 215 F. App‟x 51, 53 (2d
Cir. 2007). A court may also consider “documents upon whose terms and effect the complaint relies
heavily, i.e., documents that are integral to the complaint.” Calcutti v. SBU, Inc., 273 F. Supp. 2d
488, 498 (S.D.N.Y. 2003); see also Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). If a
document does not fall within these categories, a court must, for the purposes of a motion to dismiss,

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“exclude the additional material and decide the motion on the complaint alone.” Friedl v. New York,
210 F.3d 79, 83 (2d Cir. 2000); MacFall v. City of Rochester, 495 F. App'x 158, 161 (2d Cir. 2012).
Defendant argues that plaintiff released all the claims he raises in his complaint when he
signed the Release in exchange for a severance payment. But plaintiff did not attach the release to his
complaint, incorporate it by reference, or even mention its existence. See, e.g., Calcutti, 273 F. Supp.
2d at 498 (release could not be considered on motion to dismiss where it was “neither mentioned in,
attached to, nor incorporated by reference in the” complaint).
Nor may I take judicial notice of the Release. Under the Federal Rules of Evidence, I may
take judicial notice of facts “not subject to reasonable dispute.” Fed. R. Evid. 201(b). Such facts must
either be “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” Id. Here, the Release has not been filed with any court nor been authenticated in any
way. It would therefore be improper for the Court to take judicial notice of its existence or the truth
of its contents. See Ranta v. City of New York, 2015 WL 5821658, at *9 (E.D.N.Y. 2015);
Muhammad v. Schriro, 2014 WL 4652564, at *3 (S.D.N.Y. 2014).
Accordingly, the Court will convert the portion of defendant‟s motion that relies on the
Release into a motion for partial summary judgment pursuant to Rule 12(d). See Ranta, 2015 WL
5821658, at *9. Plaintiff may file any additional materials pertinent to the motion by July 28, 2016,
and defendant may file any reply to plaintiff‟s submission by August 12, 2016.
Sexual Orientation and Sex Discrimination Claims under Title VII
Defendant next alleges that plaintiff either has not exhausted his administrative remedies with
respect to his claim of sex discrimination, or—to the extent his complaint is instead construed to raise
a claim for sexual orientation discrimination under Title VII—that plaintiff fails to state a claim upon
which relief can be granted. I agree.

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In his federal court complaint, plaintiff alleges sex discrimination. In his original
administrative complaint, he did not check off discrimination on the basis of sex, but only on the
basis of sexual orientation.2 Plaintiff‟s counsel stated at oral argument that plaintiff‟s theory of sex
discrimination is that he suffered from “sex-stereotyping” under Price-Waterhouse v. Hopkins, 490
U.S. 228 (1989). Even if I were to conclude, in light of plaintiff‟s original pro se status, that he has
adequately exhausted his administrative remedies with respect to this theory, the facts as alleged do
not state a claim under Title VII.
Title VII‟s prohibition on sex discrimination does not include a prohibition on sexual
orientation discrimination. See Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005);

Guttilla v. City of New York, 2015 WL 437405, at *9 n.14 (S.D.N.Y. 2015). Title VII does,
however, prohibit gender stereotyping, which can have substantial overlap with discrimination
on the basis of a plaintiff‟s sexual orientation. See Kiley v. Am. Soc. for Prevention of Cruelty to
Animals, 296 F. App‟x 107, 109 (2d Cir. 2008); Dawson, 398 F.3d at 218 (“[S]tereotypical
notions about how men and women should behave will often necessarily blur into ideas about
heterosexuality and homosexuality.”). But “a gender stereotyping claim should not be used to
bootstrap protection for sexual orientation into Title VII.” Ibid.
Here, construing plaintiff‟s complaint liberally, he has alleged that his employer decided
to discipline and fire him as a result of learning that he was in a long-term relationship with
another man. On the facts alleged, there is “no basis . . . to surmise that [plaintiff] behaved in a
stereotypically feminine manner and that the harassment he endured was, in fact, based on his
non-conformity with gender norms instead of his sexual orientation.” Simonton v. Runyon, 232

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Though the administrative complaints were not attached to the federal court complaint, plaintiff referred
throughout to the EEOC complaints, and appended two EEOC right-to-sue letters. Because plaintiff specifically
mentions and relies on his EEOC complaints, it is appropriate for me to consider their contents in deciding the
motion to dismiss. See, e.g., Pleau v. Centrix, Inc., 501 F. Supp. 2d 321, 325 (D. Conn. 2007).

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F.3d 33, 38 (2d Cir. 2000). Plaintiff fails to state a claim for sex discrimination for which relief
can be granted, and I will dismiss the claim without prejudice to plaintiff‟s filing an amended
complaint within 14 days from the date of this ruling that re-pleads the claim if such facts
actually exist and are alleged that would warrant a claim of gender-based sex discrimination.
State Law Claims for Sexual Orientation and Age Discrimination
The complaint asserts only federal law claims and does not mention any potential violations
of state law. To the extent that plaintiff might wish to pursue any state law claims for sex and age
discrimination, defendant contends that plaintiff did not bring this action within the time limit
required by the CHRO right-to-sue letter that plaintiff received regarding the January Complaint.
Although courts sometimes consider right-to-sue letters at the motion to dismiss stage that are not
attached to the complaint, they usually do so when a plaintiff specifically relies on the letter in the
complaint. See, e.g., Gibson v. State of Conn., Judicial Dep’t, Court Support Servs. Div., 2006 WL
1438486, at *3 (D. Conn. 2006); Wong v. Health First Inc., 2005 WL 1676705, at *3 (S.D.N.Y.
2005) (citing cases). Plaintiff did not attach a CHRO right-to-sue letter or reference any such letter in
the complaint.
Even if I were to conclude that, having filed his complaint pro se, that plaintiff had properly
pled the state law claims, it is far from clear that plaintiff has exhausted his administrative remedies
for such state law claims. See Gibson, 2006 WL 1438486, at *3; see also Azcona v. Wal-mart Stores,
Inc., 2015 WL 5822598, at *2 (D. Conn. 2015) (“Before bringing a CFEPA [state law] claim in
federal court, a plaintiff must first exhaust her administrative remedies.”). If plaintiff wishes to assert
any state law claims, he may file a motion for leave to amend his complaint by July 12, 2016, to
assert such state law claims and if he believes in good faith and shows that his state law claims were
exhausted and were timely filed in federal court.

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CONCLUSION
Defendant‟s motion to dismiss (Doc. #18) is GRANTED in part. Plaintiff‟s federal sex
discrimination claim is dismissed without prejudice to his filing of an amended complaint within 14
days of this order. Because defendant has raised matters outside the pleadings, the portion of the
motion to dismiss concerning the Release is converted to a motion for summary judgment. Plaintiff
may file any opposition to defendant‟s motion for summary judgment and any supporting documents
on or before July 28, 2016, and defendant may file any reply to plaintiff‟s submission on or before
August 12, 2016.
It is so ordered.
Dated at New Haven this 29th day of June 2016.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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