Robinson v. Motor Vehicle

Filing 40

RULING granting in part and denying in part 28 Motion to Dismiss. The Motion to Dismiss (Doc. No. 28) is granted in part and denied in part. Any claims with regard to Robinsons August through September 2011 suspension are dismissed. However, the plaintiff has the right to replead claim(s) relating to her first suspension if she has a factual basis to plausibly allege such claim(s). Additionally, any hostile work environment claim is dismissed. The plaintiff similarly has the right to replead claim(s) of hostile work environment if she has a factual basis to plausibly allege such claim(s). This action will proceed on Robinsons claims of discrimination and retaliation stemming from her December 2011 suspension and her termination. Additio nally, the jury trial demand is stricken to the extent that it seeks jury determination of the issue of back pay. However, the jury trial demand remains to the extent that it seeks jury determination of the issue of compensatory damages. Signed by Judge Janet C. Hall on 5/23/2017. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MELBA C. ROBINSON,
Plaintiff,

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v.
DEPARTMENT OF MOTOR VEHICLE,
Defendant,

CIVIL ACTION NO.
3:16-CV-1148 (JCH)

MAY 23, 2017

RULING RE: MOTION TO DISMISS (DOC. NO. 28)
I.

INTRODUCTION
The plaintiff, Melba C. Robinson (“Robinson”), pro se, brings this employment

discrimination action against the defendant, the State of Connecticut Department of
Motor Vehicles (“DMV”). Robinson “asserts claims pursuant to Title VII of the Civil
Rights Act, 42 U.S.C. §§ 2000e et seq. (‘Title VII’),” consisting of “claims for
discrimination on the basis of race and color,” including “both direct discrimination
claims and claims of retaliation.”1 Rec. Ruling (Doc. No. 12) (Merriam, J.) at 1, 6–7,
recommendation adopted Endorsement Order (Doc. No. 13). At the initial review stage,
this court allowed Robinson’s Title VII claims to “proceed.” Rec. Ruling at 7. DMV now
moves to dismiss these Title VII claims for failure to state a claim upon which relief can
be granted. See Mot. to Dismiss (Doc. No. 28). “Specifically,” DMV argues that (1)
Robinson “has failed to state a claim for which relief can be granted regarding her
termination, because such claims are time-barred,” (2) Robinson “has failed to state a

Robinson also initially “assert[ed] claims pursuant to . . . the Americans with Disabilities Act, 42
U.S.C. §§ 12101, et seq. (‘ADA’).” Rec. Ruling (Doc. No. 12) (Merriam, J.) at 1, recommendation adopted
Endorsement Order (Doc. No. 13). However, this court has dismissed all ADA claims. See Rec. Ruling
at 8.
1

1

claim for which relief can be granted, because the plaintiff had entered into a Stipulated
Agreement, barring her claims,” and (3) Robinson “cannot establish a prima facie case
on her remaining claims because no adverse action is pled, the claims do not rise to the
level of hostile work environment, and her allegations of discrimination are bereft of any
specific factual allegations.”2 Id. Additionally, DMV “moves to strike” Robinson’s “jury
claim,” arguing that “there is no right to a trial by jury on claims of equitable relief under
[the Connecticut Fair Employment Practices Act (CFEPA)]3 or Title VII.” Id. For the
reasons set forth below, the Motion to Dismiss is granted in part and denied in part.
II.

FACTS
The initial review stage Recommended Ruling, which this court has adopted, sets

out the facts alleged as follows:
Plaintiff alleges that she was unlawfully terminated by her
employer, defendant, on March 1, 2013. See [Compl. (Doc.
No. 1)] at 2. According to plaintiff’s Complaint, she was
terminated because of discrimination due to her race[ and]
color[ ], and in retaliation for filing a complaint of
discrimination. Id. at 5, 7. The Complaint includes allegations
of several incidents in support of her claims.
Specifically, plaintiff alleges that in June 2011 she was
suspended and given a “last chance agreement” as a result
of an incident involving a customer, in which “branch
management refused to assist” her. Id. at 3. She contends
2
DMV states that it moves to dismiss under both Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure. See Mot. to Dismiss. Rule 12(b)(1) allows a motion to dismiss for “lack of
subject-matter jurisdiction” and Rule 12(b)(6) allows a motion to dismiss for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(1),(6). However, all DMV’s arguments for dismissal
appear to rest upon DMV’s contention that Robinson has failed to state a claim upon which relief can be
granted. See Mot. to Dismiss (describing first two arguments as that Robinson “failed to state a claim” for
a particular reason, and describing third argument as that Robinson “cannot establish a prima facie
case”). Although the Defendant’s Memorandum (Doc. No. 28-1) sets out the standards for dismissal
under both Rules 12(b)(1) and 12(b)(6), see Def.’s Mem. at 3–6, the Memorandum provides no argument
as to why this court lacks subject matter jurisdiction, see id. at 6–16. The court therefore construes the
Motion to Dismiss as a motion solely under Rule 12(b)(6).
3
The court notes that the Complaint does not mention CFEPA. See Compl. at 1–13. Thus, the
court does not construe the Complaint as raising claims under CFEPA.

2

that she had repeated meetings with supervisors and even the
Commissioner regarding what she viewed as unfair treatment
in connection with this discipline, and that from that point
forward things “continued to get worse for” her. Id. On July
26, 2011, she was involved in a “minor disagreement with a
Caucasian co-worker” after a near car accident. Id. at 3.
Plaintiff states that while she was suspended for two days due
to the incident, the other worker faced no punishment
because [ ]she was [ ] Caucasian. Id. at 4. Plaintiff further
claims that she was transferred from defendant’s Norwalk
office to its Bridgeport office the day after this incident. Id.
Plaintiff states that while working in Bridgeport she was
treated by management “in a discriminatory manner” and “in
a disrespectful manner.” Id. Plaintiff describes several
instances in which she alleges she was treated unfairly,
including being “embarrassed in front of [her] customers” by
her manager, being “accused of lying[,]” and being made to
“feel like [she] was under a microscope.” Id. at 4–5.
The plaintiff’s employment was terminated on February 15,
2013, due to “Unsatisfactory Service Ratings” and for failure
to meet the terms of the last chance agreement. Id. at 5.
Plaintiff alleges that her employment was terminated after she
filed a discrimination complaint against the defendant. Id.
Plaintiff asserts that the defendant claimed she was
terminated because of her attendance, but she states that she
was never disciplined for her attendance and that several of
her absences should have been covered by FMLA. Id.
Plaintiff claims that she had a “note from the doctor” but that
defendant “refused to take it.” Id. Plaintiff alleges that she
was terminated by defendant because she had become “a
target for them.” Id. at 6.
On July 21, 2016, plaintiff filed a “right to sue” letter issued by
the Equal Employment Opportunity Commission. See [“Right to
Sue” Letter (Doc. No. 10)].

Rec. Ruling at 2–4.
III.

LEGAL STANDARD
When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must

determine whether the plaintiff has stated a legally cognizable claim by making
allegations that, if true, would show that the plaintiff is entitled to relief. See Bell Atl.
3

Corp. v. Twombly, 550 U.S. 544, 557 (2007) (interpreting Rule 12(b)(6), in accordance
with Rule 8(a)(2), to require allegations with “enough heft to ‘sho[w] that the pleader is
entitled to relief’”). The court takes all factual allegations in the complaint as true and
draws all reasonable inferences in the plaintiff’s favor. See Crawford v. Cuomo, 796
F.3d 252, 256 (2d Cir. 2015). However, the tenet that a court must accept a complaint’s
allegations as true is inapplicable to “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
To survive a motion pursuant to Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “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. 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 (2009)
(quoting Twombly, 550 U.S. at 556).
IV.

DISCUSSION
A.

Time Barring of Termination Claim

DMV argues that Robinson “has failed to state a claim for which relief can be
granted regarding her termination, because such claims are time-barred.” Mot. to
Dismiss. DMV argues that Robinson’s “claim that her termination was due to
discrimination or retaliation is time barred,” because Robinson “was notified of her
termination on February 15, 2013, and the termination was effective as of March 1,
2013,” but Robinson “did not file her Amended Complaint with the [Connecticut
4

Commission on Human Rights and Opportunities (CHRO)] alleging that her termination
was due to retaliatory treatment [ ] until February 25, 2014.” Def.’s Mem. (Doc. No. 281) at 6. As discussed below, DMV may ultimately prove correct that Robinson’s
termination claim is time-barred. However, because Robinson’s Complaint contains
facts sufficient to plausibly allege that equitable tolling may apply, the court concludes
that it would be premature to decide the time-barring question at this motion to dismiss
stage.
Rather than relying solely on the allegations in the Complaint, DMV’s timebarring argument relies in part on an Amended CHRO Complaint (Doc. No. 28-3), which
DMV submitted to the court. Robinson’s Complaint does allege that Robinson was
notified of her termination on February 15, 2013 and that her termination was effective
on March 1, 2013. See Compl. at 2, 5. Her Complaint also alleges that she “filed
charges with the” CHRO. Id. at 8. However, Robinson’s Complaint does not contain an
allegation as to (1) the date when Robinson initially filed a complaint with the CHRO or
(2) the date when Robinson amended her CHRO complaint. See id. at 8–9.
Robinson’s only allegations pertinent to the date when she informed the CHRO of her
termination claim are that Robinson “inform[ed]” “CHRO’s Regional Manager Tanya
Hughes” (“Hughes”) “on May 2, 2013” that Robinson “was terminated by” DMV, but that
Hughes failed or refused to file Robinson’s Amended CHRO Complaint at that time. Id.
at 9. From the Complaint itself, there is thus no basis upon which the court can
conclude that Robinson “did not file her [Amended CHRO Complaint] alleging that her
termination was due to retaliatory treatment [ ] until February 25, 2014.” Def.’s Mem. at
6.

5

However, the Amended CHRO Complaint submitted to the court by DMV is dated
February 25, 2014, and signed by Robinson. See Am. CHRO Compl. at 2. The
Amended CHRO Complaint states that Robinson “amends” her previous complaint to
the CHRO and “adds” that DMV “terminated [her] employment on or about February 15,
2013.” Id. ¶¶ 2, 5. The Amended CHRO Complaint thus supports DMV’s argument that
Robinson “did not file her [Amended CHRO Complaint] alleging that her termination was
due to retaliatory treatment [ ] until February 25, 2014.” Def.’s Mem. at 6.
“[I]n ruling on a Rule 12(b) motion to dismiss,” the Second Circuit has
“acknowledged that [a] court may [ ] consider matters of which judicial notice may be
taken.” Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016)
(internal quotation marks omitted). Specifically, the Second Circuit has held that, at the
motion to dismiss stage, a court may take judicial notice of “regulatory filings.” Staehr v.
Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 424–25 (2d Cir. 2008). For instance, a
court in the Eastern District of New York has granted the defendants’ request that the
court “take judicial notice of—and thus consider for purposes of [a] motion [to dismiss]—
[ ]a complaint filed by plaintiff [ ] with a[ state] administrative agency,” and submitted to
the court by the defendants. Volpe v. Nassau Cty., 915 F. Supp. 2d 284, 291 (E.D.N.Y.
2013). It is thus proper for the court to take judicial notice of the date of the Amended
CHRO Complaint, February 25, 2014.
Due to Title VII’s requirements, the fact that the Amended CHRO Complaint was
filed on February 25, 2014, means that Robinson could not have lawfully filed a
termination-related claim with the United States Equal Employment Opportunity
Commission (EEOC) before February 25, 2014: Title VII provides that,

6

[i]n the case of an alleged unlawful employment practice
occurring in a State . . . which has a State [ ] law prohibiting
the unlawful employment practice alleged and establishing or
authorizing a State [ ] authority to grant or seek relief from
such practice . . . , no charge may be filed [with the EEOC] by
the person aggrieved before the expiration of sixty days after
proceedings have been commenced under the State [ ] law,
unless such proceedings have been earlier terminated.
42 U.S.C. § 2000e-5(c). The CHRO is such a “State [ ] authority” “authorize[ed] to grant
or seek relief from” the “practice” of racially discriminatory, and retaliatory, termination.
Id.; see also Conn. Gen. Stat. §§ 46a-52, 46a-54 (establishing and empowering CHRO);
Conn. Gen. Stat. § 46a-60(a)(1),(4) (prohibiting racially discriminatory, or retaliatory,
termination). Robinson thus could not have filed a valid EEOC charge of unlawful
termination before she filed a CHRO charge of unlawful termination. See 42 U.S.C. §
2000e-5(c). Because the court has taken judicial notice of the fact that Robinson filed
the CHRO charge of unlawful termination on February 25, 2014, see Am. CHRO Compl.
at 2, the court concludes that Robinson could not have lawfully filed an EEOC charge of
unlawful termination before February 25, 2014.
Title VII also states the following:
A charge [with the EEOC] shall be filed . . . in a case of an
unlawful employment practice with respect to which the
person aggrieved has initially instituted proceedings with a
State [ ] agency . . . , [ ] within three hundred days after the
alleged unlawful employment practice occurred, or within
thirty days after receiving notice that the State or local agency
has terminated the proceedings under the State or local law,
whichever is earlier.
42 U.S.C. § 2000e-5(e)(1). The Supreme Court has explained section 2000e-5(e)(1) as
follows:
The time limit provisions of Title VII . . . establish the following
procedures for filing discrimination charges with the EEOC.
. . . If a complainant initially institutes proceedings with a state
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[ ] agency with authority to grant or seek relief from the
practice charged, the time limit for filing with the EEOC is [ ]
300 days.
E.E.O.C. v. Commercial Office Prod. Co., 486 U.S. 107, 110 (1988) (citations omitted).
Robinson was thus required to file her EEOC claim regarding unlawful termination at
least as early as 300 days after the unlawful termination occurred. However, as
discussed above, based on the timing of Robinson’s Amended CHRO Complaint,
Robinson cannot have filed a valid EEOC termination claim before February 25, 2014.
See Am. CHRO Compl. at 1; 42 U.S.C. § 2000e-5(c). February 25, 2014 is 375 days
after Robinson was notified of her termination, and 361 days after her termination
became effective. See Compl. at 2, 5 (alleging that Robinson was notified of her
termination on February 15, 2013 and that her termination was effective on March 1,
2013). Based on this timing, the court concludes that Robinson did not file her
termination-related claims with the EEOC in a timely manner.
Ordinarily, a court dismisses a Section VII claim which the plaintiff failed to file
with the EEOC in a timely manner. See Pilman v. N.Y. City Hous. Auth., 64 F. App’x
293, 296 (2d Cir. 2003) (“[T]he District Court properly dismissed [plaintiff’s]
discrimination claim as time-barred. Under [ ] Title VII . . . , a claimant may bring suit in
federal court only if she has filed a timely complaint with the EEOC.”); Smith v. NYC
Health & Hosp. Corp., No. 10-CV-714 RRM LB, 2013 WL 3013641, at *3 (E.D.N.Y.
June 18, 2013) (“A Plaintiff must timely file an EEOC charge as a prerequisite to a Title
VII claim in federal court.”).
Under the circumstances present here, however, equitable tolling may apply to
allow Robinson to proceed with her termination claim. The Supreme Court has held
“that filing a timely charge of discrimination with the EEOC is not a jurisdictional
8

prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is
subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982). In the employment discrimination context, the Second Circuit
has explained that,
equitable tolling is only appropriate in rare and exceptional
circumstances, in which a party is prevented in some
extraordinary way from exercising his rights.
Equitable tolling is generally considered appropriate where
the plaintiff actively pursued judicial remedies but filed a
defective pleading during the specified time period, where
plaintiff was unaware of his or her cause of action due to
misleading conduct of the defendant, or where a plaintiff’s
medical condition or mental impairment prevented her from
proceeding in a timely fashion. When determining whether
equitable tolling is applicable, a district court must consider
whether the person seeking application of the equitable tolling
doctrine (1) has acted with reasonable diligence during the
time period she seeks to have tolled, and (2) has proved that
the circumstances are so extraordinary that the doctrine
should apply.
Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80–81 (2d Cir. 2003) (internal
quotation marks, brackets, and citations omitted).
Here, the Complaint alleges that “CHRO’s Regional Manager Tanya Hughes”
initially failed or refused to file the Amended CHRO Complaint “on May 2, 2013,” when
Robinson “inform[ed] her” that Robinson “was terminated.” Compl. at 9. The court
notes that May 2, 2013 is only 76 days after Robinson received notification of her
termination and only 62 days after her termination became effective. See id. at 2, 5.
The court construes the Complaint in the light most favorable to Robinson—and grants
Robinson special solicitude due to her pro se status. See Tracy v. Freshwater, 623
F.3d 90, 101 (2d Cir. 2010). Thus, the court reads the Complaint to allege that
Robinson “acted with reasonable diligence during the time period” between when she
9

was notified of her termination and when she succeeded in amending her CHRO
complaint to add a termination claim. Zerilli-Edelglass, 333 F.3d at 80. It is too soon at
this stage for the court to determine whether “the circumstances are so extraordinary
that the doctrine [of equitable tolling] should apply,” Zerilli-Edelglass, 333 F.3d at 81,
because the court has not yet received evidence as to the circumstances of the CHRO’s
failure or refusal to allow Robinson to amend her CHRO complaint, see Compl. at 9. At
this stage, the court, however, does not treat the untimeliness of Robinson’s filing of her
termination claim with the EEOC as a reason to dismiss those claims.
DMV cites Jiles v. Rochester Genesee Reg’l Transportation Auth., No. 6:16-CV06051 (EAW), 2016 WL 6600145, at (W.D.N.Y. Nov. 8, 2016) in support of its argument
that equitable tolling should not apply. See Reply (Doc. No. 33) at 5. In Jiles, a court in
the Western District of New York held that equitable tolling did not apply where the
plaintiff failed to comply with Title VII’s statute of limitations due to the plaintiff’s
misunderstanding of an accurate statement made to the plaintiff by a representative of
the state employment discrimination agency. See id. at *3. Here, however, Robinson
does not allege merely that a CHRO employee told her accurate information which
Robinson misunderstood, or even that a CHRO employee lied to her. Rather, the court
construes Robinson’s Complaint as alleging that Robinson attempted to amend her
CHRO complaint in a timely manner, but that the CHRO refused to enable her to do so.
See Compl. at 9. These facts, if proven, may warrant equitable tolling.
The court acknowledges that the Second Circuit has previously “noted that it is
‘questionable’ whether [an employment discrimination agency’s] actions can be a basis
for equitable tolling where the [agency] is not a defendant.” Li-Lan Tsai v. Rockefeller

10

Univ., 46 F. App’x 657, 658 (2d Cir. 2002) (quoting Vernon v. Cassadaga Valley Cent.
Sch. Dist., 49 F.3d 886, 891 (2d Cir. 1995)). However, the Second Circuit has not
stated categorically that an employment discrimination agency’s actions cannot be the
basis for equitable tolling. See, e.g., Hannah v. Wal-Mart Stores, Inc., 969 F. Supp. 2d
229, 233–34 (D. Conn. 2013) (discussing uncertainty within this Circuit). Indeed, a
court in the Southern District of New York has ruled that “the actions of a nonparty civil
rights agency can cause equitable tolling.” Simmons v. Terrace Healthcare Ctr., Inc.,
No. 01 CV 3531 (RCC), 2004 WL 555708, at *7 (S.D.N.Y. Mar. 19, 2004). The
Simmons court thus held that a state employment discrimination agency’s provision of
misleading information warranted equitable tolling of federal employment discrimination
claims—although the agency was not a party to the suit. See id. at *7. Similarly,
“[s]ome courts in this Circuit have held that a court may waive the administrative
requirement . . . when the EEOC has incorrectly refused to” take a certain action, which
action would normally be a prerequisite to the plaintiff filing suit—even where the EEOC
was not a party to the action. Johnson v. DCM Erectors, Inc., No. 15-CV-5415 (PKC),
2016 WL 407293, at *2 (S.D.N.Y. Feb. 2, 2016) (internal quotation marks omitted)
(discussing EEOC’s incorrect refusal to file a right-to-sue letter). Courts in this Circuit
have similarly applied equitable tolling where the EEOC (1) gave a plaintiff
misinformation resulting in the plaintiff’s failure to file timely charges, or (2) withdrew the
plaintiff’s complaint due to an administrative error—again, even where the EEOC was
not a party to the action. See Jiles, 2016 WL 6600145, at *3 (collecting cases). Thus,
under certain circumstances, a state administrative agency’s wrongful refusal to allow a
plaintiff to amend her complaint might be “so extraordinary that the doctrine [of equitable

11

tolling] should apply.” Zerilli-Edelglass, 333 F.3d at 81.
The parties are therefore entitled to present evidence as to (1) Robinson’s
attempt to timely amend her CHRO complaint, and (2) CHRO’s response to this
attempt. While this evidence may ultimately prove insufficient to warrant equitable
tolling, Robinson plausibly alleges facts from which the court can infer that equitable
tolling may apply, so as to allow her termination claim to proceed at this stage.
B.

Stipulated Agreement

DMV also argues that Robinson “has failed to state a claim for which relief can
be granted, because the plaintiff had entered into a Stipulated Agreement, barring her
claims.” Mot. to Dismiss. DMV’s argument relies on two pieces of evidence DMV
submitted to the court: the First Stipulated Agreement (Doc. No. 28-5), dated August 3
and August 4, 2011, and the Second Stipulated Agreement (Doc. No. 28-6), dated
December 6, 2011 (collectively, the “Stipulated Agreements”). See Def.’s Mem. at 8.
Robinson’s Complaint does not contain the contents of the Stipulated
Agreements, nor does her Complaint allege facts from which the court could conclude
that, in one or both Stipulated Agreements, Robinson waived her right to sue for
employment discrimination. Rather, the Complaint merely alleges the following, as
pertaining to the Stipulated Agreements: After the June 2011 incident involving the
customer, Robinson “was suspended for 20 days without pay and giv[en] [the First
Stipulated Agreement].” Compl. at 3. Robinson “requested a grievance hearing
regarding [the First Stipulated Agreement] and [the] suspension.” Id. at 3. Despite
Robinson’s repeated protestations, Robinson “was told by HR and the Union” that
Robinson “was going to be terminated if” Robinson “didn’t sign the [First Stipulated

12

Agreement].” Id. at 3. “Things continued to get worse for” Robinson “as a result of the
[First] Stipulated Agreement.” Id. at 3. Robinson “was told” that the First Stipulated
Agreement would “remain in [Robinson’s] file for the duration of [her] employment with
DMV meaning any manager had access to” the First Stipulated Agreement. Id. at 3.
When Robinson was ultimately fired, “the pre-disciplinary summary[ ] stated [that
Robinson] was terminated for [one of the Stipulated Agreements].” Id. at 5. Robinson
speculates that one of the Stipulated Agreements “was issued to create a negative
perspective of” Robinson, and that, “[o]nce management placed this agreement in”
Robinson’s “file,” Robinson “became a target for” DMV. Id. at 6. These allegations of
the Complaint, without more, are insufficient to support DMV’s argument that Robinson
entered into a contract “barring her claims.” Mot. to Dismiss.
A court generally decides a Rule 12(b)(6) motion to dismiss based on the
allegations in the complaint, and not based on evidence.4 See F.D.I.C. v. U.S. Mortg.
Corp., 132 F. Supp. 3d 369, 379 (E.D.N.Y. 2015).
For purposes of this rule, the complaint is deemed to include
any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.
Even where a document is not incorporated by reference, the
court may nevertheless consider it where the complaint relies
As discussed in footnote 2, supra, the court construes DMV’s Stipulated Agreements argument
as seeking Rule 12(b)(6) dismissal, although DMV fails to clarify whether it makes this argument under
Rule 12(b)(6) or Rule 12(b)(1). It is true that the standard for considering evidence differs between the
two Rules. See, e.g., Davis v. Yeroushalmi, 985 F. Supp. 2d 349, 357 (E.D.N.Y. 2013) (“[W]hile the court
is bound by the pleadings and certain other limited evidence when ascertaining the sufficiency of the
complaint with respect to a Rule 12(b)(6) motion, a motion under Rule 12(b)(1) permits examination of
additional, extrinsic evidence.”). However, DMV has provided no authority that Rule 12(b)(1) applies to
DMV’s argument that Robinson released her claims. See Shakur v. Bruno, No. 3:12-CV-984 (SRU), 2014
WL 645028, at *2 (D. Conn. Feb. 18, 2014) (“The defendant references Rule 12(b)(1)[ ] and argues that
the [document allegedly releasing claims] may be considered by the court in order to determine whether it
has subject matter jurisdiction. Although the existence of the [document] may be a basis for the court to
deny relief, the defendant has provided no authority indicating that the existence of the [document]
deprives the court of subject matter jurisdiction over the case. Thus, counsel’s reliance on Rule 12(b)(1)
is misplaced.”). Therefore, DMV is not prejudiced by the court’s application of the Rule 12(b)(6) standard
to the Stipulated Agreements argument.
4

13

heavily upon its terms and effect, which renders the document
integral to the complaint.
Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (internal quotation
marks and citations omitted).
Here, the Stipulated Agreements are not “attached to” the Complaint. See id. at
152; see also DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60 (S.D.N.Y. 2010)
(“Whether a document is attached to a complaint is self evident.”).
For the Stipulated Agreements to be “incorporated in [the Complaint] by
reference,” Chambers v. Time, 282 F.3d at 152, the Complaint “must make a clear,
definite and substantial reference to” the Stipulated Agreements, DeLuca, 695 F. Supp.
2d at 60 (internal quotation marks omitted). For a complaint to “merely discuss[ certain]
documents” does not constitute incorporation by reference. Cosmas v. Hassett, 886
F.2d 8, 13 (2d Cir. 1989). Similarly, documents are not deemed incorporated merely
because the complaint “present[s] short quotations from” them. Id. at 13; see also Fine
v. ESPN, Inc., 11 F. Supp. 3d 209, 221 n.15 (N.D.N.Y. 2014) (“[L]imited quotations or
references to a document in a complaint are insufficient to deem an entire document
incorporated into the complaint.”). Rather, “incorporation by reference” refers to “[a]
method of making a secondary document part of a primary document by including in the
primary document a statement that the secondary document should be treated as if it
were contained within the primary one.” Incorporation by Reference, Black’s Law
Dictionary (10th ed. 2014).
Here, the Complaint makes references to the First Stipulated Agreement, see
Compl. at 3, and also makes references to one of the two Stipulated Agreements
without identifying which Agreement is being referenced, see id. at 5–6. However, the
14

Complaint does not indicate that either of the Stipulated Agreements should be treated
as if contained within the Complaint. Thus, the Stipulated Agreements are not
incorporated by reference in Robinson’s Complaint.
For the Stipulated Agreements to be “integral to the [C]omplaint,” Chambers v.
Time, 282 F.3d at 153, Robinson
must have (1) actual notice of the extraneous information and
(2) relied upon the [Stipulated Agreements] in framing the
[C]omplaint. Mere notice or possession is not enough for a
court to treat an extraneous document as integral to a
complaint; the complaint must rely heavily upon the
document’s terms and effect for that document to be integral.
Even if a document meets the twin requirements of
integrality—reliance and notice—a court still may not consider
it on a motion to dismiss if there is a dispute regarding the
authenticity or accuracy of the document or the relevance of
the document to the dispute.
DeLuca, 695 F. Supp. 2d at 60 (internal quotation marks, brackets, and citations
omitted). Here, Robinson had “actual notice of” the Stipulated Agreements, because
she signed them. However, Robinson has not “relied upon” the Stipulated Agreements
“in framing” her Complaint to this court. Compl. at 60. The thrust of Robinson’s
Complaint is that DMV unlawfully suspended and terminated her. While one or both of
the Stipulated Agreements are mentioned, they are simply mentioned as part of the
events surrounding Robinson’s first suspension and her termination, and the Stipulated
Agreements do not appear to be the basis of Robinson’s Complaint. The court
concludes that the Stipulated Agreements are not “integral to the [C]omplaint.”
Chambers v. Time, 282 F.3d at 153.
Furthermore, there is a “dispute regarding the . . . relevance of the [Stipulated
Agreements] to the dispute.” DeLuca, 695 F. Supp. 2d at 60. The pro se Complaint
makes clear that Robinson disputes the validity of the First Stipulated Agreement: The
15

Complaint alleges that, after Robinson received the First Stipulated Agreement, she
“requested a grievance hearing regarding,” inter alia, the First Stipulated Agreement.
Compl. at 3. The court construes this allegation as an allegation that Robinson viewed
the First Stipulated Agreement as improper. Furthermore, the Complaint alleges that,
despite her repeated protestations, Robinson “was told by HR and the Union” that she
“was going to be terminated” if she “didn’t sign the” First Stipulated Agreement. Id. at 3.
If Robinson is correct that she was being disciplined for discriminatory reasons, any
termination for these same reasons could also have constituted unlawful discrimination.
Thus, the court construes the Complaint’s dual contentions that (1) DMV was
discriminating against Robinson by punishing her, and (2) DMV forced her to choose
between the First Stipulated Agreement and termination, as an attack on the validity of
the First Stipulated Agreement. See Bormann v. AT&T Commc’ns, 875 F.2d 399, 403
(2d Cir. 1989) (stating that factors to consider in determining the validity of an
employee’s waiver of Title VII rights include, inter alia, “whether the consideration given
in exchange for the waiver exceeds employee benefits to which the employee was
already entitled by contract or law.”).
Robinson’s Response to the Motion to Dismiss (Doc. No. 31) also makes clear
that she disputes the validity of the Stipulated Agreements. Without clarifying which
one, Robinson argues that one of the Stipulated Agreements “violated” her “collective
bargaining contract rights.” Response at 1. Robinson also states that DMV
“threaten[ed] to terminate [her] employment if [she] didn’t sign [one of the] Stipulated
Agreement[s].” Id. at 2. Robinson states that she believes DMV gave her this
ultimatum “because [she] was a Black African American woman.” Id. at 2. Such an

16

allegation, if proven, would suggest that DMV compelled Robinson to sign the
Stipulated Agreement due to racial animus. By making the above-mentioned
arguments, Robinson disputes the validity, and thus the relevance to the present
lawsuit, of the Stipulated Agreements. The fact that Robinson “dispute[s]” the
“relevance of the” Stipulated Agreements, DeLuca, 695 F. Supp. 2d at 60, is an
additional reason why this court does not treat the Stipulated Agreements as “integral to
the [C]omplaint.” Chambers v. Time, 282 F.3d at 153.
In addition to considering documents integral to the Complaint “in ruling on a
Rule 12(b) motion to dismiss, [the Second Circuit has] acknowledged that the court may
also consider matters of which judicial notice may be taken.” Apotex Inc. v. Acorda
Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016) (internal quotation marks omitted).
However, courts in this Circuit have repeatedly refused to take judicial notice of
documents purportedly releasing claims, where the documents—unlike a judiciallyapproved settlements—were not contained within the docket of a previous lawsuit. See
Edo v. Martiny, No. 15-CV-202 (CBA), 2016 WL 7839337, at *2 (E.D.N.Y. Aug. 26,
2016) (collecting cases), report and recommendation adopted, No. 15-CV-202 (CBA)
(SMG), 2017 WL 785653 (E.D.N.Y. Mar. 1, 2017). Here, there is no reason to believe
that the Stipulated Agreements were previously presented to a court. In fact, even
where releases were previously filed with a court, where “the validity [ ] of the release”
was “determinative,” a court in the Northern District of New York concluded that judicial
notice was inappropriate because the court was “not capable of determining the validity
and effect of the releases solely by reference to the documents themselves.” Beede v.
Stiefel Labs., Inc., No. 1:13-CV-120 (MAD) (RFT), 2014 WL 896725, at *5 (N.D.N.Y.

17

Mar. 6, 2014). Beede is instructive because, here, “the validity” of the Stipulated
Agreements is “determinative,” and the court is “not capable of determining the validity
and effect of the” Stipulated Agreements “solely by reference to the documents
themselves.” See id. at *5; see also Bormann, 875 F.2d at 403 (discussing factors to
consider in determining validity of Title VII waiver, most of which cannot be determined
from face of a waiver). For these reasons, the court concludes that judicial notice of the
Stipulated Agreements is not appropriate here. Because (1) the Stipulated Agreements
are not “include[d]” in the Complaint, Chambers v. Time, 282 F.3d at 152, and (2) the
court declines to take judicial notice of them, the court does not consider the effect of
the Stipulated Agreements at this motion to dismiss stage. Thus, any possible release
of claims contained in the Stipulated Agreements does not warrant dismissal of any of
Robinson’s claims at this time.
Moreover, even if the court were to consider the Stipulated Agreements at this
stage, the court would need more evidence to determine whether the Stipulated
Agreements bar any of Robinson’s claims.
“Under Title VII, an employee may waive a discrimination claim” only if “the
release is made knowingly and voluntarily.” Espinal v. Trustees of Columbia Univ. in
the City of N.Y., No. 16 CIV. 4100 (CM), 2016 WL 6561406, at *5 (S.D.N.Y. Oct. 24,
2016). The Second Circuit has adopted a “totality of the circumstances” test to
determine whether a release was made knowingly and voluntarily. Bormann, 875 F.2d
at 403. Factors to consider in applying this test include
1) the plaintiff’s education and business experience, 2) the
amount of time the plaintiff had possession of or access to the
agreement before signing it, 3) the role of plaintiff in deciding
the terms of the agreement, 4) the clarity of the agreement, 5)
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whether the plaintiff was represented by or consulted with an
attorney, and 6) whether the consideration given in exchange
for the waiver exceeds employee benefits to which the
employee was already entitled by contract or law.
Id. at 403. Faced with a case like that at bar, in which defendants argued that a plaintiff
waived his right to sue but the plaintiff challenged the process by which those rights
were allegedly waived, a court in the Southern District of New York stated that, “[g]iven
the existence of disputed issues of fact, the Court cannot conclude, at the motion to
dismiss stage, that Plaintiff knowingly and voluntarily released the [ ] Defendants from
liability.” Espinal v. Trustees, 2016 WL 6561406, at *6. Similarly, here, the court cannot
apply the totality of the circumstances test without an opportunity for the parties to
submit evidence as to Robinson’s “education and business experience” (1), “the amount
of time” Robinson “had possession of or access to the” Stipulated Agreements “before
signing them” (2), Robinson’s “role,” if any, “in deciding the terms of the” Stipulated
Agreements (3), “whether” Robinson “was represented by or consulted with an attorney”
(5), and “whether the consideration given in exchange for the waiver exceeds employee
benefits to which” Robinson “was already entitled by contract or law” (6). Bormann, 875
F.2d at 403. As for the sixth factor, the Stipulated Agreements both state that they were
signed “in lieu of more severe discipline,” First Stipulated Agreement at 1, Second
Stipulated Agreement at 1, and Robinson states that she was required to sign the
Stipulated Agreement to avoid being fired, Compl. at 3. Thus, to determine that “the
consideration given in exchange for the waiver exceeds employee benefits to which”
Robinson “was already entitled by contract or law,” Bormann, 875 F.2d at 403, the court
would need to have already determined that, at the time of the two Stipulated
Agreements, DMV had the legal right to punish Robinson more severely, such as by
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terminating her. The court has made no such determination. If Robinson is correct that
DMV’s decision to suspend, and eventually terminate, her constituted illegal
discrimination or retaliation, then any other, more severe, adverse employment actions
that DMV could have taken against Robinson, such as terminating her earlier or
suspending her for longer, surely would likewise have constituted illegal discrimination
or retaliation.
The court thus cannot determine the validity of the Stipulated Agreements at this
stage. In addition to the fact that it would be improper to take judicial notice of the
Stipulated Agreements, the fact that the court needs evidence to determine the validity
of the Agreements is a second, independently-sufficient reason that this court does not
treat the Agreements as a basis for dismissal at this stage.
C.

Ability to Establish Prima Facie Case

After arguing that the court should dismiss Robinson’s claims based on time
barring and the Stipulated Agreements, DMV also argues that Robinson “cannot
establish a prima facie case on her remaining claims because no adverse action is pled,
the claims do not rise to the level of hostile work environment, and her allegations of
discrimination are bereft of any specific factual allegations.” Mot. to Dismiss. DMV’s
reference to “remaining claims,” id., is premised on the incorrect supposition that the
court will have dismissed certain claims based on DMV’s arguments with regard to time
barring and Stipulated Agreements. Nonetheless, the court addresses the argument
that Robinson “cannot establish a prima facie case” under Title VII “because no adverse
action is pled, the claims do not rise to the level of hostile work environment, and her
allegations of discrimination are bereft of any specific factual allegations.” Mot. to

20

Dismiss. The court concludes that Robinson has plausibly alleged sufficient facts for
her Title VII claims to proceed based on the theories of discrimination and retaliation, as
stated in the Recommended Ruling. See Rec. Ruling at 6–7. However, this court
agrees that Robinson has not plausibly alleged a hostile work environment claim.
As a general matter, Title VII claims are analyzed using the familiar, burdenshifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). The first
step of this framework requires that, to prove her claims, the plaintiff will ultimately be
required to prove a prima facie case of discrimination based on race or retaliation.
Specifically, she will be required to prove that she
(1) is a member of a protected class; (2) was performing h[er]
duties satisfactorily; (3) was discharged [or otherwise suffered
an adverse employment action]; and that (4) h[er] discharge
[or the other adverse employment action] occurred under
circumstances giving rise to an inference of discrimination on
the basis of h[er] membership in the protected class [or
retaliation].
Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000); see also Locorriere v.
NBTY, Inc., No. 13CV7277 (JFB) (ARL), 2016 WL 625618, at *5 (E.D.N.Y. Feb. 17,
2016) (describing broader Title VII prima facie case requirement, to include adverse
employment actions beyond discharge, and to include retaliation claims).
However, a plaintiff need not plead a prima facie case of discrimination to survive
a motion to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).
Rather, in the absence of direct evidence of discrimination, a plaintiff must only allege
facts that “plausibly support[ ] that the plaintiff is a member of a protected class, was
qualified, suffered an adverse employment action, and [that offer] at least minimal
support for the proposition that the employer was motivated by discriminatory
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intent.” Littlejohn, 795 F.3d at 311. As to the last prong, the facts pled need only give
“plausible support to a minimal inference of discriminatory motivation.” Id. at 311. The
Second Circuit has identified several ways in which plaintiffs may “alleg[e] facts that . . .
indirectly show discrimination by giving rise to a plausible inference of discrimination.”
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). These
allegations could include:
the employer’s continuing, after discharging the plaintiff, to
seek applicants from persons of the plaintiff’s qualifications to
fill that position; or the employer’s criticism of the plaintiff’s
performance in ethnically degrading terms; or its invidious
comments about others in the employee’s protected group; or
the more favorable treatment of employees not in the
protected group; or the sequence of events leading to the
plaintiff’s discharge; or the timing of the discharge.
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citations
omitted); Sellers v. First Student, Inc., No. 16-CV-236 (JCH), 2016 WL 6440111, at *4
(D. Conn. Oct. 28, 2016).
DMV argues that “no adverse action is pled” with respect to Robinson’s
“remaining claims.” Mot. to Dismiss. The court disagrees. First, Robinson has
plausibly alleged that she was suspended for twenty days from August to November,
2011, and for two days from December 7 to 8, 2011. Compl. at 3–4. These
suspensions both constitute adverse employment actions. See, e.g., Deberry v. Hosp.,
No. 12-CV-6251 (SLT) (RLM), 2016 WL 3840673, at *8 (E.D.N.Y. July 12, 2016)
(stating that even one-day suspension constitutes adverse employment action); Waters
v. Gen. Bd. of Glob. Ministries, 769 F. Supp. 2d 545, 558 (S.D.N.Y. 2011) (treating twoday suspension as adverse employment action); Page v. Connecticut Dep’t of Pub.
Safety, Div. of State Police, 185 F. Supp. 2d 149, 157 (D. Conn. 2002) (stating that two22

day suspension is sufficient to plausibly allege adverse employment action). Second,
Robinson has plausibly alleged that she was terminated. See Compl. at 5. Termination
also constitutes an adverse employment action. See Raspardo v. Carlone, 770 F.3d
97, 126 (2d Cir. 2014) (“Examples of actionable adverse employment actions include
termination of employment . . . .”).
DMV argues that Robinson “is unable to plead any facts which could be
construed to allege that the decision not to promote her occurred under circumstances
giving rise to an inference of discrimination.” Def.’s Mem. at 11–12. As a preliminary
matter, the court does not read the Complaint as alleging that DMV failed to promote
Robinson. See Compl. at 1–13. In fact, despite checking other boxes for alleged
adverse employment actions, Robinson declined to check the “[f]ailure to promote” box
on her Complaint form. Id. at 2. Rather, the court reads the Complaint as alleging that
DMV suspended Robinson twice, and then terminated her. See id. at 3–5. The court
thus construes DMV’s argument in this regard as that Robinson has failed to plausibly
allege that any of the adverse employment actions against “her occurred under
circumstances giving rise to an inference of discrimination.” Def.’s Mem. at 11–12. The
court disagrees, because Robinson has plausibly alleged such circumstances
surrounding her second suspension and her termination. However, the court agrees
that Robinson has failed to plausibly allege any such circumstances surrounding her
first suspension.
As for Robinson’s August through September 2011 suspension, the court agrees
that Robinson has not alleged any facts plausibly supporting a minimal inference of
discriminatory motive. See id. at 3 (merely describing events leading up to suspension

23

and arguing that suspension was unfair, without alleging any facts suggesting a racial
motivation behind suspension). Thus, any claims with regard to Robinson’s August
through September 2011 suspension are dismissed.
However, with respect to Robinson’s December 2011 suspension—punishment
for engaging in a conflict with a coworker, see id. at 3–4—Robinson has plausibly
alleged facts as to DMV’s “more favorable treatment of [an] employee[ ] not in the
protected group.” Chambers v. TRM, 43 F.3d at 37. Specifically, Robinson alleges
that, although she was suspended due to engaging in a July 26, 2011 workplace
altercation with a white coworker, the white coworker faced no punishment, despite
engaging in the identical altercation. Compl. at 4. This allegation of differential
punishment between the Caucasian coworker and Robinson is sufficient to provide “at
least minimal support for the proposition that [DMV] was motivated by discriminatory
intent,” in suspending Robinson. Littlejohn, 795 F.3d at 311. For example, a court in
the Eastern District of New York held that a plaintiff “met her ‘minimal’ burden” of
providing evidence of discrimination where her employer punished her for fighting with
coworkers outside of her protected class, but did not punish her coworkers. Temple v.
City of N.Y., No. 06-CV-2162 (RRM) (CLP), 2010 WL 3824116, at *8 (E.D.N.Y. Sept.
23, 2010) (ruling on summary judgment motion); cf. Stepheny v. Brooklyn Hebrew Sch.
for Special Children, 356 F. Supp. 2d 248, 260 (E.D.N.Y. 2005) (at summary judgment
stage, holding that plaintiff, whom employer terminated for engaging in workplace
altercation, failed to offer evidence of discriminatory intent in part because coworker
outside of protected class was also fired for engaging in same altercation). Because
she was punished for engaging in an altercation, while a coworker outside of her

24

protected class was not punished for engaging in the same altercation, Robinson has
alleged facts “giving rise to a plausible inference of discrimination,” with respect to her
December 2011 suspension. Vega, 801 F.3d at 87.
Additionally, with respect to Robinson’s termination, Robinson has plausibly
alleged facts as to “the timing of the discharge.” Chambers v. TRM, 43 F.3d at 37. “A
plaintiff can establish a causal connection that suggests retaliation by showing that
protected activity was close in time to the adverse action.” Espinal v. Goord, 558 F.3d
119, 129 (2d Cir. 2009). The Second Circuit has “not drawn a bright line to define the
outer limits beyond which a temporal relationship is too attenuated to establish a causal
relationship between the exercise of a federal constitutional right and an allegedly
retaliatory action.” Id. at 129 (internal quotation marks omitted). Rather, a court must
“exercise its judgment about the permissible inferences that can be drawn from
temporal proximity in the context of particular cases.” Id. at 129. Here, Robinson
alleges that “DMV terminated” her “employment after” she “fil[ed]” her “discrimination
complaint against” DMV. Compl. at 5. Robinson filed her First CHRO Complaint (Doc.
No. 28-2) on May 24, 2012. See First CHRO Compl. at 3. Robinson’s pursuit of her
employment discrimination claims against DMV continues presently, in this court. Thus,
Robinson has been pursuing employment discrimination claims against DMV from May
24, 2012, to the present, and was pursuing such claims in 2013, when she was
terminated. The allegation that DMV terminated Robinson while she was pursing
discrimination claims against DMV is sufficient to provide “at least minimal support for
the proposition that [DMV] was motivated by [retaliatory] intent” in terminating Robinson.
Littlejohn, 795 F.3d at 311.

25

DMV also argues that Robinson has failed to plausibly allege a hostile work
environment claim. See Mot to Dismiss; Def.’s Mem. at 13. The court agrees. To
assert a claim for hostile work environment in violation of Title VII of the Civil Rights Act,
a plaintiff must establish: (1) that her “workplace was so severely permeated with
discriminatory intimidation, ridicule, and insult that the terms and conditions of her
employment were thereby altered,” and (2) “that a specific basis exists for imputing the
objectionable conduct to the employer.” See Alfano v. Costello, 294 F.3d 365, 373 (2d
Cir. 2002). Robinson has not plausibly alleged “that her workplace was permeated with
discriminatory intimidation, ridicule, and insult.” Id. at 373. Robinson alleges numerous
conflicts that occurred between herself and others in her workplace, but does not
plausibly allege that any of these conflicts involved “discriminatory” behavior by
Robinson’s coworkers. See Compl. at 3–5. To the extent that the Complaint may be
construed as alleging a hostile work environment, such hostile work environment claim
is thus dismissed.
D.

Jury Demand

Additionally, DMV “moves to strike” Robinson’s “jury claim,” because “there is no
right to a trial by jury on claims of equitable relief under [ ] Title VII.” Mot. to Dismiss;
see also Def.’s Mem. at 16–17.
Where a Title VII plaintiff “seeks compensatory or punitive damages[,] any party
may demand a trial by jury.” 42 U.S.C. § 1981a(c)(1); see also Robinson v. Metro-N.
Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001) (“The 1991 [Civil Rights] Act
enhanced Title VII’s remedial scheme for disparate treatment claims. In addition to
back pay and front pay, it authorized the recovery of compensatory and punitive

26

damages in disparate treatment disputes, see 42 U.S.C. § 1981a(a)(1), and afforded a
jury trial where these additional remedies are sought, see 42 U.S.C. § 1981a(c).”).
However, “lost wages under Title VII,” such as back pay, “are equitable and,
therefore, need not be tried by a jury.” Thomas v. iStar Fin., Inc., 652 F.3d 141, 152 (2d
Cir. 2011). Thus, “a party is generally not entitled to a jury determination on the
question” of “back pay.” Broadnax v. City of New Haven, 415 F.3d 265, 271 (2d Cir.
2005); see also Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d 274, 294 (S.D.N.Y. 2008)
(“[P]arties in a Title VII employment discrimination case are not entitled to a jury trial on
the issue of back pay.”).
Here, Robinson seeks both back pay and compensatory damages. See Compl.
at 8, 12. She is entitled to “demand a trial by jury” on her claim for “compensatory . . .
damages.” 42 U.S.C. § 1981a(c)(1). However, she lacks such entitlement as to her
claim for back pay. See Broadnax, 415 F.3d at 271. Thus, the court strikes the jury trial
demand to the extent that it seeks jury determination of the issue of back pay, but does
not strike the demand to the extent that it seeks jury determination of the issue of
compensatory damages.
V.

CONCLUSION
The Motion to Dismiss (Doc. No. 28) is granted in part and denied in part. Any

claims with regard to Robinson’s August through September 2011 suspension are
dismissed. However, the plaintiff has the right to replead claim(s) relating to her first
suspension if she has a factual basis to plausibly allege such claim(s). Additionally, any
hostile work environment claim is dismissed. The plaintiff similarly has the right to
replead claim(s) of hostile work environment if she has a factual basis to plausibly
allege such claim(s). This action will proceed on Robinson’s claims of discrimination
27

and retaliation stemming from her December 2011 suspension and her termination.
Additionally, the jury trial demand is stricken to the extent that it seeks jury
determination of the issue of back pay. However, the jury trial demand remains to the
extent that it seeks jury determination of the issue of compensatory damages.
SO ORDERED.
Dated at New Haven, Connecticut this 23rd day of May, 2017.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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