White v. Smiths Medical ASD, Inc.

Filing 25

ORDER granting 16 Motion to Dismiss. Please see attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 09/20/2016. (Thomas, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ANTHONY WHITE,
Plaintiff,
v.
SMITHS MEDICAL ASD, INC.,
Defendant.

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CIVIL CASE NUMBER:
3:14-cv-01501-VLB
September 20, 2016

Memorandum of Decision
Anthony White sues his former employer, Smiths Medical ASD, Inc.
(“Smiths”), alleging that he was fired shortly after requesting medical leave and
that his employer fired him to quash an inchoate claim for workers’ compensation.
The issue is whether these allegations provide plausible support to a minimal
inference that Smiths was motivated by White’s claim for workers’ compensation
or by White’s exercise of other rights afforded to him by Connecticut’s Workers’
Compensation Act (“WCA”).

They do not, even assuming that a claim for

preemptive or anticipatory retaliation is cognizable. Smiths had no reason to
anticipate a claim for workers’ compensation: White does not allege any facts
suggesting that he informed Smiths of a work-related injury, that Smiths should
have suspected a work-related injury, or that Smiths knew that White intended to
seek workers’ compensation.

White does allege that his wife had previously

sought workers’ compensation, but this allegation is irrelevant. The complaint
does not connect the cause of her injury or to the cause of his injury. And, despite
the pending motion to dismiss, White has not sought leave to amend his complaint
for the purpose of asserting these essential facts.

Background
The complaint contains the following allegations.

ECF No. 1-2.

White

worked for Smiths, a multinational manufacturer of medical devices, for thirty-eight
years, from 1976 until October 2014. Id. at ¶¶ 3, 7, 17. White developed significant
back pain beginning in July or August 2014, and a month or so later, in late
September or early October 2014, he sought medical treatment. Id. at ¶¶ 10–11. An
orthopedic surgeon diagnosed him with degenerative disc disease of his lumbar
spine and recommended surgery. Id. at ¶ 12. White scheduled surgery for early
November 2014 and emailed his supervisor, human resources manager, and site
coordinator to request a medical leave of absence. Id. at ¶ 13–14. In late October
2014, after no one responded to his email, White called the human resources
manager to request the phone number for the company that administers medical
leave. Id. at ¶ 16. White was fired several days later. Id. at ¶ 17.
White asserts four claims for relief. Id. The only claim now at issue is
retaliation in violation of Connecticut General Statutes § 31-290a—namely, Smiths
fired White because it “perceived that he was going to file a workers’ compensation
claim.” Id. at ¶ 21. Buttressing this claim, White alleges that his employer’s belief
was informed by the fact that his wife, who also worked for Smiths and sustained
a (presumably work-related) neck injury, had sought workers’ compensation in
2012. Id. at ¶ 19. Her claim for workers’ compensation was costly; she did not work
for two years. Id. at ¶ 20.
Smiths moves to dismiss the retaliation claim for failure to state a claim. ECF
No. 16. Smiths argues that White fails to plead two elements of a prima facie claim

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of retaliation: he neither alleges the existence of a protected activity nor that his
employer knew that he engaged in that activity. Id. White’s opposition is less clear.
ECF No. 17-1. He states that an employee need not engage in a protected activity
before receiving anti-retaliation protections, but he leaves the Court with a handful
of squibs to identify his novel legal theory (preemptive or anticipatory retaliation)
and cobble together a standard for evaluating it. Id. Smiths replies that the two
cases cited in support are easily distinguishable: in those cases, there was a clear
and unmistakable injury at work of which the employer had notice. ECF No. 18.
Discussion
When reviewing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a
court “accept[s] all factual allegations as true and draw[s] all reasonable inferences
in favor of the plaintiff.” Litwin v. Blackstone Grp., L.P., 634 F.3d 706, 715 (2d Cir.
2011). To survive a Rule 12(b)(6) motion, the complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
A district court follows a “two-pronged approach” to evaluate the sufficiency
of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). A district
court begins “‘by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556

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U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility standard
is not akin to a probability requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations
omitted).
Connecticut General Statutes § 31-290a prohibits an employer from
discharging, causing to be discharged, or discriminating against any employee
“because the employee has filed a claim for workers’ compensation benefits or
otherwise exercised the rights afforded to him pursuant to the provision of this
chapter.” Borrowing the familiar burden-shifting standard articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the Connecticut Supreme Court has
held that a prima facie claim of retaliation requires proof of the following four
elements: (1) the employee engaged in a protected activity; (2) the employer was
aware of this activity; (3) the employer subjected the employee to an adverse
action; and (4) a causal connection between the protected activity and the adverse
action. Mele v. City of Hartford, 270 Conn. 751, 776 (2004). A plaintiff need not
plead a prima facie case of retaliation, but he must allege facts providing “plausible
support to a minimal inference of [retaliatory] motivation.”1 Cf. Littlejohn v. City of

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A different pleading standard applies to retaliation claims under Title VII.
See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015)
(requiring the plaintiff to “plausibly allege that: (1) defendants discriminated—or
took an adverse employment action—against him, (2) ‘because’ he has opposed
any unlawful employment practice.”). The Court applies the standard applicable to
discrimination claims because the Connecticut Supreme Court has not required
showing of but-for causation. See Bissonnette v. Highland Park Mkt., Inc., 2014 WL
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New York, 795 F.3d 297, 311 (2d Cir. 2015) (addressing 12(b)(6) standard in the
context of discrimination claims under Title VII).
The arguments for and against dismissal turn on the following two
questions: (1) whether an employee is protected from retaliation motivated by the
possibility of a future workers’ compensation claim; and if so, (2) whether White
has alleged facts providing “plausible support to a minimal inference” that Smiths
had such a motivation. The Court has not found any Connecticut cases explicitly
discussing “preemptive” or “anticipatory” retaliation, although various appellate
and district courts have found such claims actionable under federal and state law.
See, e.g., Sauers v. Salt Lake Cty., 1 F.3d 1122, 1128 (10th Cir. 1993) (“Action taken
against an individual in anticipation of that person engaging in protected
opposition to discrimination is no less retaliatory than action taken after the fact;
consequently, we hold that this form of preemptive retaliation falls within the scope
of 42 U.S.C. § 2000e–3(a).”); but see Torsky v. Avon Products, Inc., 707 F.Supp. 942,
946 (W.D. Mich. 1988) (dismissing state retaliatory discharge claim arising out of
the anticipated filing of a worker’s compensation claim). And two cases cited by
White suggest that a claim for preemptive or anticipatory discharge is cognizable
under Connecticut law. See Huertas v. Rexel, C.L.S., 2011 WL 725005, at *2 (Conn.
Super. Ct. Jan. 26, 2011) (holding that notice of intention to file workers’
compensation claim sufficient); Lombardi v. Tilcon Connecticut, Inc., 2007 WL

815872, at *3 (Conn. Super. Ct. Jan. 28, 2014) (“[T]here are compelling reasons to
believe that our state appellate courts would not choose to follow the ‘but for’
causation standard articulated by the United States Supreme Court in the Nassar
and Gross cases, in connection with § 31–290a or other state anti-discrimination
or retaliation statutes.”).
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3042212, at *5 (Conn. Super. Ct. Oct. 3, 2007) (holding that notice of work-related
injury followed by medical leave sufficient).
convincing rationale for doing so:

And the Lombardi court offers a

“[t]o hold otherwise would disadvantage

claimants who are discriminated against before they have perfected their claims
under the Act and are merely in the process of exercising their rights.” 2007 WL
3042212, at *5 (internal quotation marks and alterations omitted).
But the Court will leave the issue for another day. Evening assuming that
claims for preemptive or anticipatory retaliation are cognizable, White fails to state
such a claim because he does not allege facts providing “plausible support to a
minimal inference” that Smiths anticipated a claim for workers’ compensation. Cf.
Rope v. Auto-Chlor Sys. of Wash., Inc., 220 Cal.App.4th 635, 649 (2013), overturned
due to legislative action (dismissing claim for anticipatory retaliation, in part,
because “[plaintiff] has not alleged nor professed that he can allege that [his
employer] suspected he would file a governmental complaint”). White does not
identify a work-related injury, fails to allege that he informed Smiths of a workrelated injury, provides no facts suggesting that Smiths would have reason to know
about a work-related injury, and does not allege that he informed Smiths that he
intended to file a claim for workers’ compensation. Moreover, unlike most workrelated injuries, his condition is degenerative and lacks a traumatic origin. He
alleges only that he informed Smiths of a degenerative medical condition, of his
need for surgery, and his request for medical leave. These allegations alone are
insufficient.

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White’s allegation that his wife sustained a work-related injury has no
bearing on whether Smiths suspected a work-related injury. White and his wife
sustained different injuries, at different times, and there are no facts suggesting
that their conditions of employment in this multinational company were so similar
that those conditions would reasonably cause both injuries. Without alleging any
facts connecting the cause of his medical condition to his employment, the Court
fails to understand how an employer would anticipate a claim for workers’
compensation. If Smiths had no basis for believing that Smiths was entitled to
WCA protections, its decision to fire White cannot be related to a possible claim
for workers’ compensation or any other WCA protection.
The absence of factual allegations on this issue distinguishes this case from
Lombardi and Huertas, the only cases that White cites in support. In Lombardi, the
plaintiff alleged “[i]mmediate notice of a clear and unmistakable injury at work,
immediately followed by an extended absence for medical treatment for that
injury.” 2007 WL 3042212, at *4. In Huertas, the plaintiff alleged that he “received
a workplace injury, he told the employer of such injury, and informed the employer
of his intention to seek medical attention and his intention to file a workers'
compensation claim.” Conversely, White does not allege a clear and unmistakable
injury at work and does not allege that he informed his employer of an intention to
file a workers’ compensation claim.

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Conclusion
For the foregoing reasons, the Court grants the motion to dismiss Count
Four of the complaint.

IT IS SO ORDERED.
/s
_
Vanessa L. Bryant
United States District Judge

Order dated in Hartford, Connecticut on September 20, 2016.

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