DiCesare v. Stonington et al

Filing 37

ORDER granting in part and denying in part 23 Motion to Dismiss. Signed by Judge Victor A. Bolden on 3/17/2017. (Chen, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LOUIS DICESARE, II,
Plaintiff,
v.

No. 15-cv-1703 (VAB)

TOWN OF STONINGTON, BARBARA J.
MCKRELL, and VINCENT A. PACILEO,
III, in their individual and official capacities,
Defendants.

ORDER ON MOTION TO DISMISS
Plaintiff, Louis DiCesare, brings this action against Barbara J. McKrell, Vincent A.
Pacileo, and the Town of Stonington (“Town”). ECF No. 18. His Amended Complaint consists
of twelve counts, alleging violations of different Connecticut statutes, various violations of the
United States Constitution under 42 U.S.C. § 1983 (“Section 1983”), retaliation in violation of
the Family Medical Leave Act (“FMLA”), defamation, invasion of privacy, intentional infliction
of emotional distress, negligent infliction of emotional distress, and indemnification by the
Town. Mr. DiCesare filed this action in the Superior Court of Connecticut, and Defendants
removed it to this Court. ECF No. 2.
Defendants have filed a motion to dismiss the Amended Complaint in part, for lack of
subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Fed.
R. Civ. P. 12(b)(6). ECF No. 23. Specifically, Defendants move to dismiss Counts Six, Seven,
Eight, Ten, and Eleven, arguing that Mr. DeCesare failed to exhaust his administrative remedies
under the applicable collective bargaining agreement, and Count Nine, which Defendants argue

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is based on a Connecticut statute that does not create a private right of action. Motion at 1, ECF
No. 23.
For the following reasons, the Court GRANTS in part and DENIES in part Defendants’
motion to dismiss the Amended Complaint in part. Count Nine is dismissed for failure to state a
claim because the Connecticut Freedom of Information Act does not allow a private right of
action. Counts Seven, Eight, Ten, and Eleven of the Amended Complaint are dismissed for lack
of subject matter jurisdiction because Mr. DiCesare had not exhausted the administrative
remedies provided in the CBA’s grievance procedures. Count Six will proceed because Mr.
DiCesare need not exhaust the grievance procedures before bringing his FMLA claim.
I.

FACTUAL BACKGROUND
The Court details only the facts that are relevant to the Defendant’s partial motion to

dismiss below. Because Defendants’ motion to dismiss challenges whether the Court has subject
matter jurisdiction over certain of Mr. DiCesare’s claims, the Court also considers certain facts
that are contained in the exhibits attached to the motion to dismiss and Mr. DiCesare’s
opposition. See Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (“However,
when, as here, subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter
may be presented by affidavit or otherwise.”).
A.

Plaintiff’s Allegations

Mr. DiCesare alleges that he was a Highway Supervisor for the Town’s Public Works
Department from February 2009 until his termination on April 30, 2015. Amend. Compl. ¶ 5,
ECF No. 18. On or around January 21, 2014, Mr. DiCesare was allegedly also recognized as a
bargaining member covered by the Collective Bargaining Agreement (“CBA”) between the
Town and the Stonington Public Administrations Association, Connecticut Independent Labor

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Union, Local #54 (“Union”). Id. ¶ 2. On or around February 24, 2014, Ms. McKrell was
appointed the Town’s Director of Public Works. Id. ¶ 13. Mr. Pacileo was the Director of
Administrative Services for the Town. Id. ¶ 14. This case concerns Mr. DiCesare’s various
allegations regarding Defendants’ conduct during the period from July 2014 through Mr.
DiCesare’s termination on April 30, 2015, and some of Defendants’ conduct following the
termination. Id. ¶¶ 18-55.
Mr. DiCesare alleges that, when he was first appointed Highway Supervisor, it was a
non-bargaining unit position and not covered by the CBA. Amend. Compl. ¶ 17. On or around
July 23, 2014, the Union filed a petition with the State Board of Labor Relations (“SBLR”)
seeking to expand its bargaining unit with the Town to include Mr. DiCesare’s Highway
Supervisor position. Id. ¶ 28. Mr. DiCesare alleges that the Town opposed the Union’s petition,
and that, since then, Ms. McKrell has allegedly been “gunning for his job.” Id. ¶ 20. He alleges
that the Town, through Ms. McKrell, began taking “retaliatory” action against him, including by
modifying, eliminating, or reducing his duties; ignoring his requests to discuss performance
expectations and responsibilities; and falsely accusing him of missing deadlines or failing to
perform. Id. ¶ 21. On or around September 16, 2014, the SBLR allegedly agreed that Mr.
DiCesare’s position belonged in the Union and held an election on October 8, 2014, where the
position was voted into the unit. Id. ¶ 22. On or around January 21, 2015, The SBLR allegedly
issued a Decision and Dismissal of Objections and Modification of Unit, to formally modify the
Union’s bargaining unit to include Mr. DiCesare’s position. Id. ¶ 34. The Town allegedly
attempted to appeal this decision in a civil court action, but the SBLR’s decision became final on
or around March 27, 2015, and Mr. DiCesare’s position was allegedly deemed a bargaining unit
position as of January 21, 2015. Id.

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On or around October 9, 2014, the Town’s First Selectman allegedly “publicly berated”
Mr. DiCesare on the Town’s public Facebook page, implying that Mr. DiCesare was responsible
for “substandard management” on certain projects. Amend. Compl. ¶ 23. This allegedly caused
Mr. DiCesare “physical manifestations of emotional distress” that required him to take medical
leave from approximately October 14, 2014 to October 24, 2014. Id. ¶ 24. Mr. DiCesare alleges
that, after he returned, Ms. McKrell continued to treat him in a “hostile and retaliatory manner.”
Id. ¶ 25. On or around October 30, 2014, Ms. McKrell allegedly removed him from another
project, and Mr. DiCesare allegedly responded by email to complain that Ms. McKrell was
retaliating against him. Id. ¶¶ 27-28. On or around November 4, 2014, Ms. McKrell allegedly
issued Mr. DiCesare with a written warning. Id. ¶ 28.
1.

Suspension

On or around January 7, 2015, Ms. McKrell allegedly issued Mr. DiCesure a predisciplinary notice informing him that she intended to impose a five day suspension for
“insubordination and insufficient planning.” Amend. Compl. ¶ 30. On or around January 16,
2015, Mr. DiCesare allegedly met with Ms. McKrell and the First Selectman to discuss that
proposed suspension. Id. ¶ 32. Mr. DiCesare alleges that the Town did not allow him to bring
his attorney to the meeting. Id. The Town suspended Mr. DiCesare for five days, starting on or
around January 20, 2015. Id. ¶ 33.
Mr. DiCesare alleges that the “physical manifestations of the hostility and stress” that he
was subjected to required him to take FMLA leave from January 21, 2015 through March 23,
2015. Amend. Compl. ¶ 35. In anticipation of Mr. DiCesare’s return from FMLA leave, Ms.
McKrell allegedly issued a memorandum indicating that she was taking away Mr. DiCesare’s
Town vehicle that he had been using for six years; that she was moving his office; that he needed

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to comply to a new hour-by-hour schedule for his workday; and further reducing his authority.
Id. ¶ 36.
2.

Termination

On or around April 26, 2015, Mr. DiCesare allegedly learned that Town Highway
Department trucks were removing soil from a Town project and bringing it to the home of a
relative of a Town employee “for personal gain.” Amend. Compl. ¶ 41. Mr. DiCesare alleges
that he informed the Town’s First Selectman by e-mail. Id.
A few days later, at around 7:08 a.m. on April 30, 2015, Ms. McKrell allegedly handed
Mr. DiCesare a written memorandum informing him that he needed to attend a meeting at 7:30
a.m. that day regarding her “intention to terminate [his] employment.” Amend. Compl. ¶¶ 4243. Mr. DiCesare alleges that he requested the meeting to be postponed until “he was afforded
proper notice of the allegations against him, a copy of [Ms. McKrell’s] written questions for him,
sufficient time to prepare a response, and a union representative of his choosing.” Id. ¶ 44. Ms.
McKrell allegedly denied all of these requests. Id. ¶ 45. Following the meeting, Ms. McKrell
allegedly terminated Mr. DiCesare. Id. ¶ 47. Mr. DiCesare alleges that the meeting and
procedure leading to his termination was “replete with personal bias, false allegations of poor
performance and incomplete due process.” Id. ¶ 50.
B.

Grievance Procedure

On or around January 26, 2015, before his termination, Mr. DiCesare allegedly filed three
grievances with Mr. Pacileo regarding various allegations included in his Amended Complaint,
including the five-day suspension. Amend. Compl. ¶ 40. On February 13, 2015 and May 1,
2015, the Union allegedly filed additional grievances on behalf of Mr. DiCesare regarding the
alleged suspension. Def.’s Br. Ex. F, ECF No. 24. Following his termination, the Union

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allegedly filed another grievance on Mr. DiCesare’s behalf. Amend. Compl. ¶ 59. The
arbitration process regarding the three union grievances concerning Mr. DiCesare’s alleged
suspension are allegedly ongoing, as is the arbitration process for the remaining grievances. Satti
Aff. ¶¶ 7-12, Def.’s Br. Ex. A, ECF No. 24.
The CBA provides that a “grievance” is “defined as a claim by an employee or a group of
employees or the Union that there has been a violation, misinterpretation or misapplication of the
specific rpovisions of this agreement. CBA Art. V § 5.1, Pl.’s Br. Ex. A, ECF No. 28-1. The
CBA further provides that “[j]urisdiction of the authority of the arbitrator and his opinion and
award shall be confined to the interpretation and/or application of the provisions of this
agreement at issue between the Union and the Employer.” CBA Art. V § 5.6.
The CBA further provides that “no provisions” of the CBA “shall deem to limit or curtail
the [Town] in any way in the exercise of the rights, powers and authority which the [Town] had
prior to the effective date” of the CBA. CBA Art. III § 3.1. Under the CBA:
The Union recognizes that the [Town’s] rights, powers and authority include, but
are not limited to: the right to manage its operations; direct, select, decrease, and
increase the work force, including hiring, promotion, demotion, transfer,
suspension and/or discharge for just cause or layoff; the right to make all plans
and decisions on all matters involving its operations . . . the scheduling of
operations, means and processes of operations . . . and the right to introduce new
and improved methods and facilities and to change existing methods and
facilities; the right to maintain discipline and efficiency of employees, to prescribe
rules to that effect; to establish and change standards and quality standards . . . the
right to establish, create, revise, and implement reasonable work rules and
regulations including performance evaluations . . . and the criterion upon which
bargaining unit members shall be evaluated which shall be used to determine . . .
discipline and discharge for cause.
Id. The CBA also provides that “[t]he Town shall have the option of providing a municipal
vehicle” to employees. CBA Art XII § 12.1.A.

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II.

STANDARD OF REVIEW
A motion to dismiss for failure to state a claim under Rule 12(b)(6) is designed “merely

to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be
offered in support thereof.” Official Comm. of Unsecured Creditors of Color Tile, Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003) (internal citations omitted). When
deciding a Rule 12(b)(6) motion to dismiss, a court must accept the material facts alleged in the
complaint as true, draw all reasonable inferences in favor of the plaintiff, and decide whether it is
plausible that the plaintiff has a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); In re NYSE Specialists Sec.
Litig., 503 F.3d 89, 95 (2d Cir. 2007).
A plaintiff's “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” and assert a cause of action with enough heft to show entitlement to relief and
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555,
570. A claim is facially plausible if “the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Although “detailed factual allegations” are not required, a complaint must offer
more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,”
or “naked assertion [s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 555-57.
Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is
improbable, and ... recovery is very remote and unlikely.” Id. at 556 (internal quotation marks
omitted).

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When assessing a motion to dismiss under Fed. R. Civ. P. 12(b)(1), for lack of subject
matter jurisdiction, “[t]he plaintiff bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence,” and the court should “constru[e] all ambiguities and draw[] all
inferences in a plaintiff's favor.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir. 2005) (internal quotation marks omitted). Where a defendant's motion to dismiss
raises a “factual attack for lack of subject matter jurisdiction,” the Court “must determine
whether the factual predicate for subject matter exists.” Russo v. City of Hartford, 184 F. Supp.
2d 169, 178 (D. Conn. 2002). In making this determination “there is no presumptive truthfulness
to the facts alleged in the complaint, and the court may consider evidentiary matter presented in
an affidavit or otherwise in addition to the complaint.” Id. (citing Kamen, 791 F.2d at 1011
(“However, when, as here, subject matter jurisdiction is challenged under Rule 12(b)(1),
evidentiary matter may be presented by affidavit or otherwise.”)).
III.

DISCUSSION
Defendants move to dismiss Counts Six, Seven, Eight, Nine, Ten, and Eleven of Mr.

DiCesare’s Amended Complaint. ECF No. 23. Count Six alleges that the Town and Ms.
McKrell violated Mr. DiCesare’s rights under the FMLA. Amend. Compl. at 19. Count Seven
alleges that Ms. McKrell and the Town are liable for defamation against him under Connecticut
common law. Id. at 20. Count Eight alleges that Ms. McKrell and the Town are liable for
invasion of privacy under Connecticut common law. Id. at 20-21. Count Nine alleges that Mr.
Pacileo and the Town violated Conn. Gen. Stat. § 1-200 et seq. (the “Connecticut Freedom of
Information Act”). Id. at 21-24. Count Ten alleges that Ms. McKrell is liable for intentional
infliction of emotional distress under Connecticut common law. Id. at 25. Count Eleven alleges

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that Ms. McKrell is liable for the negligent infliction of emotional distress under Connecticut
common law. Id. at 25-26.
Defendant moves to dismiss Counts Six, Seven, Eight, Ten, and Eleven for a lack of
subject matter jurisdiction because Mr. DiCesare had not exhausted the administrative remedies
provided in the CBA’s grievance procedures. Def.’s Br. at 8-11, ECF No. 24. Defendant moves
to dismiss Count Nine for failure to state a claim, arguing that the Connecticut Freedom of
Information Act does not provide a private right of action. Id. at 11-13.
A.

Connecticut Freedom of Information Act

Count Nine of the Amended Complaint alleges that the Town and Mr. Pacileo violated
the Connecticut Freedom of Information Act. Amend. Compl. at 21-24. The Connecticut
Supreme Court has held that the Connecticut Freedom of Information Act “does not provide a
private right of action.” Pane v. City of Danbury, 267 Conn. 669, 673 (2004), overruled on other
grounds, Grady v. Town of Somers, 294 Conn. 324 (2009). The Connecticut Supreme Court
found that “the legislature intended that the civil penalty provided by [Conn. Gen. Stat.] § 1206(b)(2) would be the exclusive remedy for the violation of a right conferred by the FOIA.” Id.
at 680; see also Conn. Gen. Stat. § 1-206(b)(2) (“[T]he commission may, in its discretion,
impose against the custodian or other official a civil penalty of not less than twenty dollars nor
more than one thousand dollars.”).
Plaintiff’s brief fails to address Defendant’s argument that Count Nine should be
dismissed for failure to state a claim because the Connecticut Freedom of Information Act does
not provide a private right of action. See generally Pl.’s Br., ECF No. 28. The Court therefore
grants Defendant’s motion to dismiss Count Nine for failure to state a claim.

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B.

Exhaustion of Administrative Remedies

Under Connecticut law, “collective bargaining agreement procedures are the exclusive
remedy unless the parties expressly agree otherwise,” thus “where nothing is said in the
collective bargaining agreement about exclusivity, the agreement is considered to be the
exclusive remedy.” Saccardi v. Bd. of Educ. of the City of Stamford, 45 Conn. App. 712, 720
(1997). “It is well settled under both federal and state law that, before resort to the courts is
allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration
procedures, such as those contained in the collective bargaining agreement . . . . Failure to
exhaust the grievance procedures deprives the court of subject matter jurisdiction.” Hunt v.
Prior, 236 Conn. 421, 431 (1996); see also Sweeney v. Enfield Bd. of Educ., No. 3:14-CV-01511
(MPS), 2015 WL 4722969, at *5 (D. Conn. Aug. 10, 2015) (finding no subject matter
jurisdiction over plaintiff’s breach of contract claim because he had not exhausted the grievance
procedures provided under the collective bargaining agreement).
Connecticut courts recognize exceptions to this exhaustion requirement “only
infrequently and only for narrowly defined purposes.” Hunt, 236 Conn. at 432. “One of the
limited exceptions to the exhaustion rule arises when recourse to the administrative remedy
would be demonstrably futile or inadequate.” Id.
1.

FMLA Claim

Count Six alleges that the Town and Ms. McKrell violated Mr. DiCesare’s rights under
the FMLA. Amend. Compl. at 19. Conn. Gen. Stat. § 31-51bb provides additional exceptions to
the exhaustion requirement, that “[n]o employee shall be denied the right to pursue, in a court of
competent jurisdiction, a cause of action arising under the state or federal Constitution or under a
state statute solely because the employee is covered by a collective bargaining agreement.”

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Conn. Gen. Stat. § 31-51bb. The Connecticut Supreme Court has found that, through Conn.
Gen. Stat. § 31-51bb, “the legislature intended to eliminate the requirement that a plaintiff who is
subject to a collective bargaining agreement exhaust all grievance and arbitration procedures
before pursuing any statutory remedies in the trial court” and that “an employee who does not
exhaust the grievance procedures established in a collective bargaining agreement may pursue a
cause of action . . . if the cause of action is premised on an independent statutory claim.”
Nyenhuis v. Metro. Dist. Comm'n, 300 Conn. 708, 716 (2011) (discussing case brought under
Conn. Gen. Stat. § 53-39); see also Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 493
(1993) (“[W]e are persuaded that the language of § 31–51bb, illuminated by its legislative
history, supports the conclusion that the legislature intended to permit an employee, despite his
prior voluntary submission of a related claim to final arbitration under a collective bargaining
agreement, to pursue a statutory cause of action in the Superior Court.”)
Although Conn. Gen. Stat. § 31-51bb does not, by its text, exempt federal statutory
claims, such as FMLA claims, from the exhaustion requirement, courts have generally found that
federal statutory actions are not subject to the exhaustion requirement. See Ciasullo v. State,
Dep't of Envtl. Prot., No. CV084037300, 2009 WL 1312724, at *6 (Conn. Super. Ct. Apr. 14,
2009) (holding that plaintiff need not exhaust administrative remedies prior to bringing FLSA
claim despite acknowledging “that while § 31-51bb allows for causes of action arising under the
state or federal constitution or under a state statute, it does not include causes of action under
federal statutes” (internal quotation marks omitted)); Mefferd v. City of Middletown, No. 06 97
67, 1995 WL 681611, at *5 (Conn. Super. Ct. Nov. 3, 1995) (finding that “the plaintiffs are not
required to exhaust their administrative remedies” before bringing Section 1983 claims); but see
Serafin v. Connecticut, No. 3:98-CV-398 (CFD), 2005 WL 578321, at *8 (D. Conn. Mar. 9,

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2005) (taking into account that “neither the text of § 31-51bb nor the statute's legislative history
indicates that it was intended to apply to federal statutory claims, the Court finds that § 31-51bb
cannot apply to causes of action arising under federal statutes such as the FMLA” in order to find
that arbitration proceeding completed prior to plaintiff initiating lawsuit had res judicata effect).
Because the exhaustion requirement in Conn. Gen. Stat. § 31-51bb is not intended to
preclude plaintiffs subject to a collective bargaining agreement, such as Mr. DiCesare, from
bringing a cause of action “premised on an independent statutory claim,” Nyenhuis, 300 Conn. at
716, the Court finds that the exhaustion requirement does not prevent Mr. DiCesare from
bringing his FMLA claim. See Manos v. Geissler, 377 F. Supp. 2d 422, 427 (S.D.N.Y. 2005)
(“We begin by noting that there is no administrative prerequisite to filing an FMLA claim; the
FMLA does not require an exhaustion of administrative remedies prior to initiation of a lawsuit
under its provisions.”). The Court therefore denies Defendants’ motion to dismiss Count Six of
the Amended Complaint.
2.

Common Law Claims

Counts Seven, Eight, Ten, and Eleven alleges that the Defendants are liable for various
common law claims under Connecticut law. Amend. Compl. at 20-26. Mr. DiCesare argues that
the CBA in this case is narrow and alleges that it does not cover the disputes alleged in Counts
Seven, Eight, Ten, and Eleven and that he should not, therefore, be required to exhaust his
administrative remedies before bringing these claims. Pl.’s Br. at 3-7.
“In determining whether a tort claim is subject to the grievance procedures of a collective
bargaining agreement, the critical inquiry . . . is whether the tortious conduct is encompassed by
the terms of the agreement.” Sobczak, 88 Conn. App. at 109. Courts have found that a collective
bargaining agreement that defines a grievance as a “violation of a specific term or terms of this

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Agreement or a problem incident to job descriptions, classifications, duties, and working
conditions,” covers various tort claims including a negligent infliction of emotional distress
claim premised on a “hostile work environment.” Id.
The Connecticut Supreme Court has found that a collective bargaining agreement that
defined a grievance as “a complaint by an administrator or a group of administrators that there
has been a violation, misinterpretation or misapplication of a specific provision or provisions of
this contract,” did not govern or require exhaustion in a case where plaintiff alleged constructive
discharge and other claims including intentional infliction of emotional distress because a
defendant supervisor allegedly harassed and tormented her, forcing her to resign and find another
job. Mendillo v. Bd. of Educ. of Town of E. Haddam, 246 Conn. 456, 476 (1998), overruled on
other grounds, Campos v. Coleman, 319 Conn. 36 (2015). The court found that defendants
could not point to “any ‘specific provision’ of the agreement that would be violated,
misinterpreted or misapplied” by the supervisor’s alleged tortious conduct and that the court’s
“examination of the agreement d[id] not disclose any such provision” because it governed only
“matters of compensation and conditions of employment,” and not alleged “intentional tort[s] by
one employee . . . against another.” Id. at 466-67.
Mr. DiCesare argues that the grievance procedure in the CBA only governs “the
interpretation and/or application of the provisions of [the CBA],” and that the CBA is thus too
narrow in scope to encompass his common law claims for defamation, invasion of privacy,
intentional infliction of emotional distress, and negligent infliction of emotional distress. CBA
Art. V ¶ 6. The CBA also provides, however, that it shall not “limit or curtail the [Town] in any
way in the exercise of the rights, powers and authority which the [Town] had prior to the
effective date” of the CBA, and that such powers included the right to “direct, select, decrease,

13

and increase the work force, including hiring, promotion, demotion, transfer, suspension and/or
discharge for just cause,” “the right to maintain discipline and efficiency of employees, to
prescribe rules to that effect; to establish and change standards and quality standards,” and the
“right to establish, create, revise, and implement reasonable work rules and regulations including
performance evaluations . . . and the criterion upon which bargaining unit members shall be
evaluated which shall be used to determine . . . discipline and discharge for cause.” CBA Art. III
§ 3.1.
Unlike in Mendillo where the plaintiff did not allege that the defendant actually
terminated her or used the workplace disciplinary procedures against her, Mr. DiCesare’s case
relies primarily on allegations regarding the Defendants’ conduct in relation to changing his
duties and responsibilities, changing his conditions of employment, and suspending and
terminating his employment. The CBA’s provisions allow the Town to suspend or discharge
employees “for just cause,” CBA Art. III § 3.1, and Mr. DiCesare’s allegations show that Ms.
McKrell and the Town represented to Mr. DiCesare that they suspended and terminated him for
cause, even if Mr. DiCesare disputes the truth of their stated justifications. Furthermore, many
of Mr. DiCesare’s allegations relate to Defendants’ allegedly changing his conditions of
employment as retaliation for his requesting to be part of the Union’s bargaining unit, including
by modifying or reducing his duties and criticizing his job performance. The CBA arguably
governs these allegations because it allows the Town “the right to maintain discipline and
efficiency of employees” and the right to establish and revise “reasonable work rules and
regulations including performance evaluations.” CBA Art. III § 3.1
The Court therefore finds that “the tortious conduct” that Mr. DiCesare alleges in Counts
Seven, Eight, Ten, and Eleven of the Amended Complaint are “encompassed by the terms of the

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[CBA],” and that he must exhaust his administrative remedies before he can bring those claims.
Sobczak, 88 Conn. App. at 109. The Court grants Defendants’ motion to dismiss these claims.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’

motion to dismiss the Amended Complaint in part. Count Nine is dismissed for failure to state a
claim because the Connecticut Freedom of Information Act does not allow a private right of
action. Counts Seven, Eight, Ten, and Eleven of the Amended Complaint are dismissed for lack
of subject matter jurisdiction because Mr. DiCesare had not exhausted the administrative
remedies provided in the CBA’s grievance procedures. Count Six will proceed because Mr.
DiCesare need not exhaust the grievance procedures before bringing his FMLA claim.
SO ORDERED at Bridgeport, Connecticut, this 17th day of March, 2017.

/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge

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