Craig v. Mental Health & Addiction Svcs et al
RULING granting 49 Motion to Dismiss. Count One is dismissed, with permission to replead the discrimination claim within seven (7) days of this Ruling. Counts Two, Three, and Five are dismissed. Count Four has been withdrawn. Signed by Judge Janet C. Hall on 11/28/2017. (Anastasio, F.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STATE OF CONNECTICUT
DEPARTMENT OF MENTAL HEALTH
AND ADDICTION SERVICES, ET AL.,
CIVIL CASE NO.
NOVEMBER 28, 2017
RULING RE: MOTION TO DISMISS (DOC. NO. 49)
Plaintiff Lois Craig (“Craig”) brings this action against the Connecticut
Department of Mental Health and Addiction Services (“DMHAS”) and Celeste CreminEndes, Rachel Manemeit, Melody Davis, Abby Cramer, Tommy Wilson, Debby Baker,
and Stephanie Leonard Harris in their individual and official capacities on the basis of
claims arising out of Craig’s employment relationship with DMHAS. Second Amended
Complaint (“2nd Am. Compl.”) (Doc. No. 45). In her five-count Second Amended
Complaint, Craig alleges violations of her rights under sections 1981 and 1983 of title 42
of the United States Code (Count One); negligent infliction of emotional distress
(“NIED”) (Count Two) and defamation (Count Three) under state common law;
violations of the Americans with Disabilities Act (“ADA”) (Count Four); and violations of
her rights under sections 1985 and 1986 of title 42 of the United States Code (Count
The defendants bring this Motion to Dismiss (Doc. No. 49) under Federal Rules
of Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6), asserting that the Second
Amended Complaint should be dismissed in its entirety. For the reasons that follow,
defendants’ Motion to Dismiss is granted.
II. FACTUAL BACKGROUND1
Craig is an African-American female who has been employed by DMHAS as a
Mental Health Assistant II for over sixteen years. 2nd Am. Compl. at ¶ 3. As a union
delegate, Craig frequently represents her coworkers and herself in disputes between
the union and management. Id. at ¶ 5.
In October 2012, Craig received a five-day suspension on the grounds that she
failed to supervise a client and then falsified documents about her client’s whereabouts.
Id. at ¶ 9, Ex. 2. Craig filed a complaint of discrimination with the State of Connecticut
Commission on Human Rights and Opportunities (“CHRO”) in November 2012. Id. The
notice of Craig’s five-day suspension should have been removed from her file after
eighteen months, but remains there as of October 2016. Id. at ¶ 10. Defendants have
used the notice of the five-day suspension as a pretext to place Craig on multiple 90day Performance Improvement Plans (“PIP”), which limit her promotional opportunities
and expose her to termination.2 Id. at ¶ 11.
On September 24, 2015, a DMHAS Safety Officer sent an office-wide email
informing DMHAS employees that several staff members had the air released from their
cars’ tires in a DMHAS parking lot. Id. at ¶ 13, Ex. 4. The email stated that an
investigation was ongoing and did not name any suspects. Id. Subsequently, several
All “facts” are taken from the Second Amended Complaint unless otherwise stated.
2 Craig attaches her Annual Service Ratings, Employee Service Ratings, and PIP as exhibits in
support of her allegation that defendants used the five-day suspension as a pretext to place her on the
PIPs. 2nd Am. Compl. at ¶ 11. The ratings detail many aspects of Craig’s performance, but there is no
mention of the 2012 suspension on any of the forms. Id. at Exs. 20–23.
of the defendants questioned Craig about the incident and gave her a brochure titled,
“Violence in the Workplace.” Craig was the only employee questioned and counseled
on workplace violence at the meeting. Id. at ¶ 13–14.
At an unspecified time, defendant Debby Baker referred to Craig as “an angry
Black Woman [sic], who often wore dread locks styled hair.” Id. at ¶¶ 16, 112. Baker
also described Craig as “cocky, lacking respect, intimidating, exhibiting poor
communication skills, being illogical, and rude”; said that Craig’s hair style “harbored
head lice”; and stated that Craig “was too cocky and needed to be cut down to size.” Id.
at ¶¶ 17–18, 113–14. In addition, in Craig’s performance evaluations, defendants wrote
that Craig was “working too slowly on the job.” Id. at ¶¶ 22, 27, 118. DMHAS never
disciplined any of the individual defendants for making derogatory remarks towards
Craig. Id. at ¶¶ 17, 113.
Following defendants’ conduct described above, Craig developed serious mental
and emotional conditions, including anxiety, depression, post-traumatic stress disorder,
high blood pressure, and insomnia. Id. at ¶ 23. Craig was granted a leave of absence
under the Federal Family and Medical Leave Act (“FMLA”) in January 2016. Id. at Ex.
9. Craig later applied for an accommodation for her mental health conditions, which she
supported with documentation of her diagnosis of a nervous breakdown in 2016. Id. at
¶¶ 24, 29. In her accommodation request, Craig asked to be moved from the second
shift to the third shift. Id. at Ex. 9. On November 18, 2016, the ADA Review Committee
denied her request. Id. Craig states that the defendants determined that Craig’s mental
and emotional “conditions were not serious enough, and that she needed to develop a
more concrete [version] of a nervous breakdown in order to qualify for an
accommodation under the ADA.”3 Id. at ¶ 30.
In June 2016, Craig attempted to a file a grievance about receiving discipline
without cause. Id. at ¶¶ 38–39. The defendants told Craig that “only managers could
file complaints.” Id.
III. LEGAL STANDARDS
“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take
all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences
in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). Where jurisdictional facts are in
dispute, the court has the power to decide issues of fact by reference to evidence
outside the pleadings, such as affidavits. Id. The burden is on the plaintiffs to establish
jurisdiction. Renne v. Geary, 501 U.S. 312, 316 (1991); see also Tandon, 752 F.3d at
A motion to dismiss pursuant to Rule 12(b)(1) is “the proper procedural route” to
bring a challenge to a plaintiff’s Article III standing to adjudicate a claim. Alliance for
Environmental Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir.
3 Craig provides a copy of the letter from the DMHAS Affirmative Action Office denying her
accommodation request as an exhibit to the Second Amended Complaint. 2nd Am. Compl., Ex. 9. The
letter provided several reasons for denying Craig’s request, but does not include the quoted language
regarding the severity of Craig’s condition. It is unclear when the defendants told Craig the language
quoted in the Second Amended Complaint was the basis for their denial of her request.
Upon a motion to dismiss pursuant to Rule 12(b)(2) for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating that the court may properly
exercise jurisdiction over the defendants. See Dorchester Fin. Sec., Inc. v. Banco BRJ,
S.A., 722 F.3d 81, 84–85 (2d Cir. 2013). “In order to survive a motion to dismiss for
lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction
exists.” Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167–68 (2d Cir. 2015)
(internal quotation marks omitted). “A plaintiff can make this showing through his own
affidavits and supporting materials, containing an averment of facts that, if credited,
would suffice to establish jurisdiction over the defendant.” Whitaker v. American
Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2008) (citations, internal quotation marks,
brackets, and ellipsis omitted). The court “construe[s] the pleadings and affidavits in the
light most favorable to the plaintiffs, resolving all doubts in their favor.” Dorchester, 722
F.3d at 85.
When a plaintiff fails to effect proper service upon a defendant and the defendant
does not waive service of process pursuant to Rule 4(d), the plaintiff’s action may be
subject to dismissal pursuant to Rule 12(b)(5). “On a Rule 12(b)(5) motion to dismiss,
the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan,
360 F. App’x 202, 203 (2d Cir. 2010).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must
determine whether a 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. 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” (alteration in original)). The court takes all factual allegations in the complaint as
true and draws all reasonable inferences in the plaintiff’s favor. Crawford v. Cuomo,
796 F.3d 252, 256 (2d Cir. 2015). However, the principle 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.’” Id. (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.” Id. (quoting Twombly, 550 U.S. at 556).
Service of Process for the Individual Defendants in their Official
Under Federal Rule of Civil Procedure 4, a plaintiff may serve process upon a
government agency by “delivering a copy of the summons and of the complaint to its
chief executive officer” or “serving a copy of each in the manner prescribed by that
state’s law for serving a summons or like process on such a defendant.” Taylor v.
Norwalk Cmty. Coll., No. 3:13-cv-1889 (CSH), 2015 WL 5684033, at *5 (D. Conn. Sept.
28, 2015) (quoting Fed. R. Civ. P. 4(j)(2)).
Under Section 52-64 of the Connecticut General Statutes:
Service of civil process in any civil action . . . against any officer, servant,
agent or employee of the state . . . may be made by a proper officer (1)
leaving a true and attested copy of the process, including the declaration
or complaint, with the Attorney General at the office of the Attorney
General in Hartford, or (2) sending a true and attested copy of the
process, including the summons and complaint, by certified mail, return
receipt requested, to the Attorney General at the office of the Attorney
General in Harford.
Defendants argue that Craig never served the individual defendants in their
official capacities. See Defs.’ Mem. in Supp. of the Mot. to Dismiss (“Defs.’ Mem.”)
(Doc. No. 49-1) at 9–13. Instead, DMHAS was the only defendant served at the
Attorney General’s Office. See id. at 11. Craig argues that all of the individual
defendants received copies of the summons and complaint indicating that they were
being sued in their individual and official capacities. See Pl.’s Opp’n to Defs.’ Mot. to
Dismiss (“Pl.’s Opp’n”) (Doc. No. 57) at 12–15. Further, the summons and complaint
served on the Office of the Attorney General provided notice that the individual
defendants were being sued in their official capacities. See id. at 14.4
Craig did not serve individual defendants in their official capacities under Rule
4(j)(2) or Connecticut law. None of the returns of service Craig has filed show that the
individual defendants were served in their official capacities. See Doc. Nos. 17, 20, 27,
46. Presumably, the basis for Craig’s argument that the individual defendants were on
notice that they were being sued in their official capacities is that they were served a
4 Craig spends a page addressing the distinction between a “proper officer” and an “indifferent
person” in response to an argument Craig states the defendants put forward. See Pl.s’ Opp’n at 13.
However, the defendants did not discuss the type of person who can serve process. The only
conceivable explanation for Craig’s imagined dispute is that her attorney copied and pasted an argument
from another case.
copy of the Complaint in their individual capacities. If Craig is suggesting that the
caption of the Complaint, which states each defendant’s name followed by “in her
individual and in her official capacities,” accomplished service, then that is clearly
inadequate under Rule 4(j)(2) or Connecticut law.5 With the exception of the summons
naming DMHAS that was delivered to the Attorney General’s Office in Hartford in
compliance with section 52-64, see Doc. No. 20, the returns of service only evidence
the service of defendants in their individual capacities, see Doc Nos. 17, 27, 46.
Craig also argues that the copy of the complaint and summons served on the
Office of the Attorney General gave notice that the individual defendants were being
served in their official capacities. The basis for Craig’s argument is again uncertain, but
to the extent that she is referring to the list of every defendant in the case that appeared
on the cover page of the summons, she has plainly not complied with the federal or
state rules for service. No summons for any of the individual defendants were delivered
to the Attorney General’s Office. See Conn Gen. Stat. § 52-64 (describing the method
for serving process “against any . . . employee of the state”). The requirements of Rule
4(j)(2) and Connecticut law have not been satisfied as to the individual defendants in
their official capacities because there has been no service on each of the defendants in
accordance with section 52-64.
When the plaintiff shows “good cause” for failing to serve the defendants, “the
court must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m).
5 The caption of the Second Amended Complaint only lists the individual defendants in their
individual capacities even though it includes claims against the individual defendants in their official
capacities. The captions in Plaintiff’s Opposition to the Motion to Dismiss, the Amended Complaint, and
the Complaint all list the individual defendants in their individual and official capacities. The court will
assume that the change in the Second Amended Complaint was inadvertent.
Even without good cause, district courts have discretion to grant extensions of time to
serve process. See Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007). The
defendants repeatedly alerted plaintiff’s counsel to the fact that he had not served the
individual defendants in their official capacities. Defendants’ counsel stated that she
was appearing for the individual defendants in their individual capacities only, see Doc
Nos. 11, 18, 48, and later stated that the defense contested personal jurisdiction over
the individual defendants in their official capacities, see Report of Rule 26(f) Planning
Meeting (Doc. No. 35). Given the ample opportunity she had to cure the deficiency in
her service of process, Craig has not shown good cause for her failure to properly effect
service on the individual defendants in their official capacities. See George v. Prof’l
Disposables Int’l, Inc., 221 F. Supp. 3d 428, 433 (S.D.N.Y. 2016) (A “delay in service
resulting from the mere inadvertence, neglect, or mistake of a litigant’s attorney does
not constitute good cause.” (quoting AIG Managed Mkt. Neutral Fund v. Askin Capital
Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000)). The court need not determine
whether it would nonetheless exercise its discretion to grant Craig an extension of time
to serve process because her claims against the individual defendants in their official
capacities all fail on the grounds of the Eleventh Amendment.
John Doe and Jane Doe Defendants
Apart from listing John Does and Jane Does in the caption of the Second
Amended Complaint, Craig does not make allegations against the unnamed defendants
anywhere in the Complaint. See Fed. R. Civ. Pro. 12(b)(6). In addition, Federal Rule of
Civil Procedure 4(m) requires that defendants be served with process within ninety days
after a complaint is filed. Fed. R. Civ. Pro. 4(m). No John Doe or Jane Doe has been
Craig argues that the claims against the unnamed defendants should not be
dismissed because discovery has not yet begun. Craig filed her initial Complaint on
December 21, 2016. She filed her Opposition to Defendant’s Motion to Dismiss stating
that she had not begun discovery on September 12, 2017. The deadline for discovery
is January 15, 2018. Craig cannot show “good cause” for extending the time for service
beyond ninety days when, 265 days after filing her Complaint, she had not yet begun
The claims against the Doe defendants are dismissed under Rule 12(b)(6) for
failure to state a claim upon which relief may be granted and Rule 4(m) for failure to
provide service of process.
Sections 1981 and 1983 (Count I)6
In response to defendants’ argument that Craig’s sections 1981, 1983, 1985, and
1986 claims are barred by the Eleventh Amendment, see Defs.’ Mem. at 16–18, Craig
has withdrawn her claims for monetary damages under those sections against DMHAS
and the individual defendants in their official capacities, see Pl.’s Opp’n at 16. Craig
maintains her claims for injunctive relief.
Craig does not make an argument for why her claims for injunctive relief in
Counts One and Five are not barred by the Eleventh Amendment. See Pl.’s Opp’n at
6 Craig includes sections 1985 and 1986 in the heading for Count I in the Second Amended
Complaint, but she does not plead violations of sections 1985 and 1986 in that count. The court will thus
address her allegations under sections 1985 and 1986 in Count V, where she includes her allegations
under those sections.
16. Defendants argue that Craig’s requests for injunctive relief are too vague to satisfy
the requirements of the Ex parte Young doctrine, which allows claims for “prospective
injunctive relief” against individual state officers. See Defs.’ Reply to Pl.’s Opp’n to Mot.
to Dismiss (“Defs.’ Reply”) (Doc. No. 61) at 8 (citing In re Deposit Ins. Agency, 482 F.3d
612, 618 (2d Cir. 2007)).
The Ex parte Young doctrine requires that plaintiff’s complaint “‘(a) alleges an
ongoing violation of federal law’ and (b) ‘seeks relief properly characterized as
prospective.’” In re Deposit Ins. Agency, 482 F.3d at 618 (quoting Verizon Md., Inc. v.
Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). Because the Ex parte Young
doctrine does not apply to suits against the state itself, Craig’s claim for injunctive relief
against DHMAS cannot proceed. See Va. Office for Prot. & Advocacy v. Stewart, 563
U.S. 247, 255 (2011). Moreover, assuming that Craig served process on the individual
defendants in their official capacities, her request for injunctive relief—“an order that
each defendant shall fully comply with the provisions of [sic] pursuant to 42 U.S.C. §
1981 . . . “—is impermissibly vague and overbroad. See Peregrine Myanmar Ltd. V.
Segal, 89 F.3d 41, 51 (2d Cir. 1996) (“[U[nder Rule 65(d), an injunction must be more
specific than a simple command that the defendant obey the law.”). Thus, her claim for
injunctive relief under sections 1981, 1983, 1985, and 1986 is dismissed.
Section 1981 provides that “[a]ll persons . . . shall have the same right . . . to
make and enforce contracts . . . and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white citizens.”
42 U.S.C. § 1981. The analysis of employment discrimination claims under Title VII
applies to comparable claims under sections 1981 and 1983. See Patterson v. County
of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). “When the defendant is a state actor,
Section 1983 is the exclusive remedy for violations of rights guaranteed under Section
1981.” See Bermudez v. City of New York, 783 F. Supp. 2d 560, 576 (S.D.N.Y. 2011);
see also Gladwin v. Pozzi, 403 F. App’x 603, 605 (2d Cir. 2010) (explaining that
plaintiff’s section 1981 claims are “encompassed” by her section 1983 claims and are
therefore analyzed under Section 1983); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
733 (1989) (holding that section 1983 is the exclusive remedy for violations of rights
guaranteed under section 1981 when the defendant is a state actor). The term “state
actor” as used in Jett included both state entities and individuals acting under color of
state law. See Burbank v. Office of Atty. Gen. of Connecticut, 250 F. Supp.2d 167, 174
(D. Conn. 2003). Accordingly, Craig’s claims under section 1981 against DHMAS and
the individual defendants in their official and individual capacities are dismissed.
To state a claim under section 1983, a plaintiff must allege “the violation of a right
secured by the Constitution and laws of the United States . . . committed by a person
acting under color of state law.” See Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 87–88 (2d Cir. 2015) (quoting Feingold v. New York, 366 F.3d 138, 159 (2d
Cir. 2004)). Defendants do not contest that the conduct Craig alleges violated her rights
was under color of state law because it was “committed by state employees acting in
their official capacities as [DMHAS] employees and exercising their responsibilities
pursuant to state law.” See Feingold, 366 F.3d at 159. However, defendants contend
that Craig has not identified violations of any constitutional rights. See Defs.’ Mem. at
First Amendment Retaliation
“To state a First Amendment retaliation claim, a plaintiff must establish that: (1)
his speech or conduct was protected by the First Amendment; (2) the defendant took an
adverse action against him; and (3) there was a causal connection between this
adverse action and the protected speech.” Puglisi v. Town of Hempstead, Dep’t of
Sanitation, Sanitary Dist. No. 2, 545 F. App’x 23, 26 (2d Cir. 2013) (quoting Cox v.
Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)). “[T]he First
Amendment protects a public employee from retaliation by his or her employer for the
employee’s speech only if ‘the employee sp[eaks]  as a citizen  on a matter of
public concern.’” Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013) (alteration in original)
(quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).
Defendants argue that Craig has not identified any constitutionally protected
speech in which she engaged, or in which she was prevented from engaging. See
Defs.’ Mem. at 31. Defendants also argue that Craig did not experience any retaliation
for engaging in protected speech. Id. Defendants assert that the only speech Craig has
identified—a complaint she made in 2012 to the CHRO and an attempt to file a
grievance in 2016—cannot form the basis of a First Amendment claim. Id. The 2012
complaint is barred by Connecticut’s three-year statute of limitations, see Harnage v.
Torres, 665 F. App’x 82, 83 (2d Cir. 2016) and, in 2016, Craig’s supervisor merely
conveyed to Craig the DHMAS policy that only supervisors could complete the form
Craig filed, but informed Craig she could present her supervisor with a complaint at any
time, see 2nd Am. Compl., Ex. 16. In Craig’s Opposition to Defendants’ Motion to
Dismiss, she restates the facts of her case in a background section, but she does not
respond to the defendants’ argument that she has not stated a plausible claim for First
Amendment retaliation. See Pl.’s Opp’n at 1–7.
In the section of her Second Amended Complaint labeled “The Parties,” Craig
alleges that defendants have retaliated against her as a result of her union activity. See
2nd Am. Compl. at ¶¶ 5–6.7 Although the references to Craig’s union activity at the
beginning of the Second Amended Complaint would seem to suggest that Craig’s union
activity lies at the heart of her claims, Craig subsequently makes no mention of her
union activity in any of the Counts, including the section of Count One where she
presents her First Amendment retaliation claim. See id. at ¶ 131. Instead, in
subsections purportedly supporting her First Amendment claim, Craig asserts that she
has been subject to disparate treatment “on the basis of his [sic] race, color, age,
harassment and by subjecting the Plaintiff to a racially hostile work place . . . .” See id.
at ¶ 131(a).8 In oral argument on November 20, 2017, Craig represented that the
Rather than pleading facts in her Second Amended Complaint, Craig makes conclusory
statements followed by references to exhibits. While exhibits may supplement facts plead in a complaint,
the plaintiff cannot refer the court to exhibits as a substitute for following Rule 8’s requirement to state
claims with sufficient clarity that the defense, and the court, have notice of what is being plead and can
assess the merits of the complaint. Here, for example, Craig alleges in vague terms that she was active
in the union and, instead of pleading facts, refers the court to 52 pages of “assorted emails.” The
sections of her Second Amended Complaint on each of her five counts are entirely devoid of factual
content—besides incorporating all of the preceding paragraphs of the complaint—and consist of nothing
more than long chains of generalized allegations.
In the section of the Second Amended Complaint titled “Parties,” Craig introduces various facts
as grounds for claims of retaliation, racially hostile work environment, harassment, and discrimination.
See 2nd Am. Compl. at ¶¶ 7, 8, 9, 12, 19, 28. It is not clear which facts are alleged in support of any
given claim. The sections on each individual count include pages and pages of recitations of the
elements of various causes of action without including any allegations specific to Craig’s claims.
Moreover, the paragraphs under section 1983 blend various causes of actions, resulting in a claim that is
difficult to decipher. See id. at ¶ 131, 131(a) (listing disparate treatment on the “basis of his [sic] race,
color, age, harassment” and racially hostile workplace as the basis of a “First Amendment to Free
alleged protected activity she engaged in was filing personal complaints and grievances
against the defendants. When asked how union activity figured into her First
Amendment retaliation claim, Craig’s counsel stated that she was referring to union
hearings for her own complaints.
Personal grievances are not speech on a matter of public concern that can form
the basis of a First Amendment retaliation claim. See Ruotolo v. City of New York, 514
F.3d 184, 190 (2d Cir. 2008). “[S]peech on a purely private matter, such as an
employee’s dissatisfaction with the conditions of his employment, does not pertain to a
matter of public concern.” Sousa v. Roque, 578 F.3d 164, 174 (2d Cir. 2009) (quoting
Lewis v. Cohen, 165 F.3d 154, 164 (2d Cir. 1999)). This is in part because “government
officers could not function if every employment decision became a constitutional
matter.” See Connick v. Myers, 461 U.S. 138, 143 (1983). Craig’s attempt to file a
personal grievance in 2016, and her complaint in 2012 to the CHRO, are not instances
of protected First Amendment speech, even assuming the latter was not time-barred.
Craig does not state a claim under the First Amendment.
“In order to prevail on a due process claim, a claimant must identify a
constitutionally protected property or liberty interest and demonstrate that the
government has deprived that party of the interest without due process of law.”
Weinstein v. Albright, 261 F.3d 127, 134 (2d Cir. 2001). Property interests are created
by independent sources such as state law. See Bd. of Regents v. Roth, 408 U.S. 564,
577 (1972). “Under Connecticut law, only ‘classified’ employees ‘have a property right
in continued employment which is protected by the due process clause of the
[F]ourteenth [A]mendment.” Torres-Hicks v. Conn. Housing Finance Authority, 575 F.
Supp. 2d 393, 404 (quoting King v. Lensink, 720 F. Supp. 236, 239 n.1 (D. Conn. 1989).
Craig does not assert that she was terminated from her employment and thus she
cannot assert a violation of due process.
Equal Protection Clause: Discrimination
In Count One of the Second Amended Complaint, Craig claims that defendants
violated her rights under the Equal Protection Clause and that she experienced
disparate treatment and retaliation.9 Presumably because Craig did not clearly state
what her claims are or the factual bases for them, the defendants did not respond to her
disparate treatment claim specifically.
“The Fourteenth Amendment provides public employees with the right to be ‘free
from discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d
Cir. 2015) (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)). With the
addition of the requirement that the person who allegedly violated plaintiff’s rights have
acted under color of state law, a section 1983 discrimination claim is analyzed under the
same framework as a Title VII discrimination claim. See id. at 88. “[T]o defeat a motion
to dismiss in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the
employer took adverse action against him, and (2) his race, color, religion, sex, or
national origin was a motivating factor in the employment decision.” Id. at 87. A plaintiff
can allege that her employer took adverse action against her at least in part for a
9 As with her First Amendment retaliation claim, Craig does not clearly state what constitutional
violation she seeks to vindicate under section 1983 and how that right was violated. It is not clear if Craig
is alleging that she was retaliated against for her union activity, discriminated against on the basis of her
race, or retaliated against for complaining of racial discrimination.
discriminatory reason “by alleging facts that directly show discrimination or facts that
indirectly show discrimination by giving rise to a plausible inference of discrimination.”
Craig alleges that defendants took adverse employment actions against her in
the form of keeping her on a PIP and failing to remove her five-day suspension from her
file.10 “A plaintiff sustains an adverse employment action if he or she endures a
materially adverse change in the terms and conditions of employment.” Galabaya v.
N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks
omitted). “An adverse employment action is one which is more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d 128,
138 (2d Cir. 2003) (internal quotation marks omitted). “Examples of materially adverse
changes include termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices unique to a particular situation.” Id.
(alteration omitted) (internal quotation marks omitted).
Craig alleges that defendants have kept the notice of her five-day suspension
from 2012 in her file as a pretext to place her on PIPs. 2nd Am. Compl. at ¶ 11. Craig
alleges that her placement on PIPs has in turn prevented her from pursuing promotional
opportunities. Id. The Second Circuit has held that a performance improvement plan is
not an adverse employment action insofar as it requires an employee to follow certain
10 Craig does not allege facts in connection with any of her specific legal claims. Instead, she
alleges acts of “retaliation” in the “Parties” section of her Second Amended Complaint. It is not clear
whether these acts of retaliation are also claimed to be discrimination on the basis of race. Although
Craig only characterizes the PIP as an act of retaliation, the court presumes that Craig intends the PIP to
form a part of her discrimination claim as well because, without an adverse employment action, her
discrimination claim would be incomplete.
requirements. See Brown v. Am. Golf Corp., 99 F. App’x 341, 343 (2d Cir. 2004).
However, when a performance improvement plan affects an employee’s possibility for
advancement or compensation, it may be an adverse employment action. See
E.E.O.C. v. Bloomberg L.P., 967 F. Supp. 2d 816, 893 (S.D.N.Y. 2013) (finding that
plaintiff’s placement on a performance plan could constitute an adverse employment
action when it impacted her eligibility to receive additional compensation).
Here, Craig argues that the tangible effect of the PIPs is to prevent her from
being promoted. In order to state a claim for a failure to promote, a plaintiff must show
that “she applied for an available position for which she was qualified, but was rejected
under circumstances which give rise to an inference of unlawful discrimination.” See
Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998) (quoting Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). It is not sufficient to allege
that a plaintiff generally requested promotion consideration. See Petrosino v. Bell
Atlantic, 385 F.3d 210, 227 (2d Cir. 2004). Instead, there must be a specific position to
which a plaintiff applied. Id. Craig has not alleged any facts about a specific
promotional opportunity for which she applied.
While the Second Amendment Complaint only pleads the PIPs’ effect on her
ability to attain a promotion, the court notes, after digging deeper into materials
appended to the complaint than any court should have to, that Craig has provided
emails in which she complains of limitations upon her ability to transfer positions.11 In
one email, Craig expresses her desire for a lateral transfer because there are “no
avenues for personal growth or advancement.” 2nd Am. Compl. Ex. 1 at 27. In another
Craig attached 237 pages of exhibits to a 44 page Second Amended Complaint.
email, a DMHAS employee informs Craig that she is not permitted to add her name to
the transfer list because, per DMHAS policy, an employee with discipline more serious
than a written warning and a Service Rating that is not satisfactory or better is ineligible
to transfer. Id. at 20. However, there is no indication in the documents Craig provided
that the PIPs or the five-day suspension notice from 2012 limited Craig’s ability to
transfer. Without an accompanying negative consequence, the PIPs and the continued
presence of the 2012 discipline notice in her file cannot qualify as adverse employment
actions. See Bloomberg L.P., 967 F. Supp. 2d at 893. Craig’s discrimination claim is
dismissed for failure to state a claim.
However, the court notes that Craig has alleged that defendant Debby Baker
made discriminatory comments about her. Baker allegedly made references to Craig as
“an angry Black woman, who often wore dread locks styled hair.” See 2nd Am. Compl.
at ¶ 112. Someone also allegedly overheard Baker telling a coworker that Craig’s
dreadlocks hair style “harbored head lice.” See id. at ¶ 113. If Craig is able to allege
that these comments reveal discriminatory intent in connection with an adverse
employment action, she may state a claim for discrimination. At the motion to dismiss
stage, the plaintiff “need only plausibly allege facts that provide ‘at least minimal support
for the proposition that the employer was motivated by discriminatory intent.’” Id. at 87
(quoting Littlejohn v. City of New York 795 F.3d 297, 311 (2d Cir. 2015).
Because it appears that Craig may be able state a claim against defendant
Debby Baker, the court grants Craig leave to file an amended complaint in seven (7)
days against Baker, or any specific defendant, who allegedly discriminated against her.
If Craig chooses to file an amended complaint, she must allege facts on the face of her
complaint. See Fed. R. Civ. P. 8(a)(2).
Equal Protection Clause: Retaliation
Craig repeatedly makes reference to retaliation without specifying whether she is
referring to First Amendment retaliation or retaliation by a supervisor against an
employer for complaining of or otherwise opposing discrimination in violation of the
Equal Protection Clause. In order for an Equal Protection Clause retaliation claim under
section 1983 to survive a motion to dismiss, “the plaintiff must plausibly allege that: (1)
defendants acted under the color of state law, (2) defendants took adverse employment
action against him, (3) because he complained of or otherwise opposed discrimination.”
Vega, 801 F.3d at 91. As with discrimination claims brought under section 1983,
retaliation claims under section 1983 mirror the analysis for Title VII cases. Id. For the
purposes of a Title VII retaliation claim, “an adverse employment action is any action
that ‘could well dissuade a reasonable worker from making or supporting a charge of
discrimination.’” See id. at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006). Indirect evidence such as proximity in time between the protected
activity and the adverse employment action can be sufficient to plead causation. See
id. at 90.
The only protected activity Craig alleges is a complaint to the CHRO in 2012.
This complaint is too remote in time from Craig’s placement on the PIP beginning in
2014 to plausibly allege a causal link between a protected activity and an adverse
employment action. Craig’s retaliation claim under the Equal Protection Clause is
therefore dismissed for failure to state a claim.
Equal Protection Clause: Hostile Work Environment
In order to state a cause of action for a hostile work environment claim, Craig
must allege that “the workplace is permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Demoret v. Zegarelli, 451
F.3d 140, 149 (2d Cir. 2006) (internal quotation marks omitted). A “[p]laintiff must show
not only that she subjectively perceived the environment to be abusive, but also that the
environment was objectively hostile and abusive.” Id. “Generally, unless an incident of
harassment is sufficiently severe, ‘incidents must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive.’” Id. (quoting
Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)). A section 1983 equal protection
claim must allege the personal involvement of the individual defendants. See Feingold
v. New York, 366 F.3d 138, 159 (2d Cir. 2004).
Craig has not plead facts that plausibly allege a claim to a hostile work
environment. The comments Craig attributes to Debby Baker are concerning and have
supported the court’s decision to grant Craig leave to replead her discrimination claim,
see supra at 20, but Craig does not describe her interactions with Baker beyond the two
remarks about her race and hair. Stray remarks cannot constitute the basis for a hostile
work environment claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(“[M]ere utterance of an epithet which engenders offensive feelings in a [sic] employee
does not sufficiently affect the conditions of employment to implicate Title VII.” (internal
quotation citation, quotation marks, and editing omitted)); Payton v. City Univ. of New
York, 453 F. Supp. 2d 775, 785 (S.D.N.Y. 2006) (“Conduct that is merely offensive,
unprofessional, or childish cannot support a hostile work environment claim. Nor can
offhand comments, isolated incidents, stray remarks, or [the plaintiff’s] subjective belief
constitute a viable claim.”) (internal citation and quotation marks omitted)).
Furthermore, the Second Amended Complaint indicates that Craig heard of the
remarks second-hand. While racial remarks need not be spoken in the presence of the
plaintiff to contribute to a hostile work environment, Schwapp v. Town of Avon, 118 F.3d
106, 111 (2d Cir. 1997), the two insults at issue, both spoken out of earshot of Craig, do
not amount to a hostile work environment. See Bennette v. Cinemark U.S.A., Inc., 295,
F. Supp. 2d 243, 251 – 52 (considering that remarks were heard second-hand in
evaluating the totality of the circumstances in a hostile work environment claim). Craig
does not make any allegations about defendants’ conduct beyond Baker’s remarks and
the conclusory statement that Craig has been “subjected to repeated acts of harassing
conduct, retaliation, and a hostile work environment. See 2nd Am. Compl. at ¶ 12.
Craig’s hostile work environment claim is therefore dismissed.
Negligent Infliction of Emotional Distress (Count II)
Defendants argue that the 11th Amendment bars Craig’s suit against DMHAS
and the individual defendants in their official capacities. Craig does not respond to this
argument. Craig has not presented any arguments that the state defendants have
consented to be sued on an NIED claim nor that any statute has abrogated their
immunity. The court finds that the NIED claim against DMHAS and the individual
defendants in their official capacities is barred by state sovereign immunity.
The Supreme Court of Connecticut has found that an individual municipal
employee can only be found liable for negligent infliction of emotional distress in the
context of the termination of employment, as opposed to actions occurring in the context
of an ongoing employment relationship. See Bakhit v. Safety Markings, Inc., 33 F.
Supp. 3d 99, 105 (D. Conn. 2014) (citing Perodeau v. City of Hartford, 259 Conn. 729,
763 (2002)). Craig does not allege that she was fired and therefore has not stated a
claim for NIED against the defendants in their individual capacities. See id.
Defamation (Count III)
As with Craig’s NIED claim, the court finds that the defamation claim against
DMHAS and the individual defendants in their official capacities is barred by the
Under Connecticut law, “[a] defamatory statement is defined as a communication
that tends to harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him.” Gambardella
v. Apple Health Care, Inc., 291 Conn. 620, 627 (2009). “To establish a prima facie case
of defamation, the plaintiff must demonstrate that: (1) the defendant published a
defamatory statement; (2) the defamatory statement identified the plaintiff to a third
person; (3) the defamatory statement was published to a third person; and (4) the
plaintiff’s reputation suffered injury as a result of the statement.” Id. at 627–28. A
statement must be false to be actionable as defamation. See Cweklinsky v. Mobil
Chemical Co., 267 Conn. 210, 228–29 (2004).
Craig alleges that the defendants accused her of “releasing the air from the tires
of two of her coworkers.” Craig alleges that defendants then counseled her and
presented her with a manual on workplace violence. However, nowhere in her Second
Amended Complaint does Craig allege that any defamatory statement was made about
her. The email that was sent out alerting DHMAS employees to the investigation into
the tire deflating did not identify Craig or any particular individual. The defendants’
presentation of a manual on workplace violence is not a defamatory statement. This
leaves the “counseling.” Defendant alleges that “[t]his incident was witnesses [sic] by
other [sic] at Defendants DMHAS [sic].” Without any factual allegations of what was
said, that third parties heard the statement, or that there was harm to her reputation,
Craig has not alleged facts that plausibly state a claim for relief. Her defamation claim
The Americans with Disabilities Act (Count IV)
Having failed to exhaust her administrative remedies, Craig withdrew her ADA
claim at oral argument on November 20, 2017.12
Sections 1985 and 1986 (Count V)
“To state a claim under § 1985, a plaintiff must allege: (1) a conspiracy, (2) an
intent or purpose to deprive a person of equal protection of the law; (3) an act in
furtherance of the conspiracy; and (4) an injury to a person, including injury to property,
person, or constitutional right.” Bhatia v. Yale Sch. of Med., 347 F. App’x 663, 665 (2d
Cir. 2009). To plead a conspiracy, a plaintiff must “provide some factual basis
supporting a meeting of the minds, such that defendants entered into an agreement,
express or tacit, to achieve the unlawful end.” Arar v. Ashcroft, 585 F.3d 559, 569 (2d
Because Craig withdrew her ADA claim, the court does not reach the question of whether her
ADA claim against DHMAS and the individual defendants in their official capacities is barred by the
Eleventh Amendment. However, the court is troubled that Craig argues that she has brought her
employment discrimination claim not under Title I of the ADA, but pursuant to Title II, which, unlike Title I,
has been found to abrogate state sovereign immunity. See Pl.’s Opp’n at 24–26. Craig’s position flies in
the face of Second Circuit law that is directly to the contrary. See Mary Jo C. v. New York State & Local
Ret. Sys., 707 F.3d 144, 171 (2d Cir. 2013) (“[W]e conclude that the [ADA] unambiguously limits
employment discrimination claims to Title I. A public employee may not bring a Title II claim against his or
her employer, at least when the defendant employer employs fifteen or more employees.”)
Cir. 2009) (quoting Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003). Craig has not
plead any facts to support her conspiracy claim beyond her conclusory statement that
there was a conspiracy. See 2nd Am. Compl. at ¶ 184 – 86. Section 1986 provides a
cause of action against a defendant that failed to prevent an underlying section 1985
conspiracy. Consequently, her section 1986 claim must fail along with her section 1985
claim. See Maack v. Wyckoff Heights Medical Center, 2017 WL 4011395 at *8
(S.D.N.Y. Sept. 11, 2017). Both claims are therefore dismissed.
For the foregoing reasons, the defendants’ Motion to Dismiss is granted. Count
One is dismissed, with permission to replead the discrimination claim within seven (7)
days of this Ruling. Counts Two, Three, and Five are dismissed. Count Four has been
Dated at New Haven, Connecticut this 28th day of November, 2017.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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