Cobb v. Atria Senior Living, Inc. et al

Filing 33

ORDER. For the reasons discussed in the attached, Defendants' 24 Motion to Dismiss is GRANTED in part and DENIED in part. Counts One and Three are DISMISSED. The case will proceed on Counts Two, Four, Five, and Six. Signed by Judge Michael P. Shea on 1/29/2018. (Taykhman, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KEITH COBB,
Plaintiff,

No. 3:17-cv-00291 (MPS)

v.
ATRIA SENIOR LIVING, INC. and TERRY
JACKSON
Defendants.
RULING ON THE DEFENDANTS’ MOTION TO DISMISS, IN PART, THE AMENDED
COMPLAINT
Plaintiff Keith Cobb filed this action against Defendants Atria Senior Living, Inc. (“Atria”)
and Terry Jackson (collectively, “Defendants”) after he was terminated from his position as a nurse
at one of Atria’s assisted living facilities. Defendants move to dismiss Cobb’s claims for hostile
work environment and/or quid pro quo sexual harassment and discrimination under Title VII of
the Civil Rights Act of 1964 (“Title VII”) (Count One); retaliation under Title VII (Count Two);
gender discrimination and sexual harassment under the Connecticut Fair Employment Practices
Act (“CFEPA”), Connecticut General Statute (“Conn. Gen. Stat.”) §§ 46a-60(a)(8), 46a-60(a)(1)
(Count Three); retaliation under CFEPA, Conn. Gen. Stat. § 46-60(a)(4) (Count Four); and
retaliation for constitutionally protected speech under Conn. Gen. Stat. § 31-51q (Count Six). (ECF
No. 24.)1
For the reasons discussed below, I GRANT the motion to dismiss with respect to Cobb’s
gender discrimination claims (Counts One and Three), and DENY the motion to dismiss with
respect to Cobb’s retaliation claims (Counts Two, Four, and Six).
I.

Factual Allegations

1

Defendants do not move to dismiss Count Five, alleging impermissible termination in retaliation
for whistleblowing activity under Conn. Gen. Stat. § 31-51m.
1

A. Cobb’s Employment at Atria
Cobb is a white male and was 54 years old at the time he filed the Amended Complaint.
(ECF No. 22 ¶ 16.) In April 2011, Cobb began working for Atria, a corporation that operates
private senior living facilities, at an assisted living facility in Stamford, Connecticut. (Id. ¶¶ 5,
18.) Cobb worked as a nurse and caregiver to the senior residents at the facility. (Id. ¶ 19.) Cobb
received consistently positive reviews for all four years of his employment with Atria. (Id. ¶ 20.)
B. Cobb Opposes Sexual Harassment and Discrimination Directed at a Female
Colleague
During his employment at Atria, Cobb learned of sexual harassment and discrimination
directed toward a female nursing colleague, Ms. Rutherford. (Id. ¶¶ 22-23.) Cobb alleges that
Defendant Jackson, an Executive Director at Atria, frequently harassed Rutherford, insisting that
Rutherford talk with Jackson about personal matters, asking her to hug him, and making romantic
advances toward her, embarrassing Ms. Rutherford in front of others. (Id. ¶¶ 23-26.) Cobb alleges
that Rutherford refused Jackson’s advances, and that Jackson became angry and resentful as a
result. (Id. ¶ 27.) One on occasion in April 2015, Cobb alleges that Rutherford was alone with
Jackson in an elevator in the Stamford facility and decided not to interact with Jackson. (Id. ¶ 28.)
Jackson later reprimanded Rutherford in his office, stating, “when I come around you need to smile
more and talk to me.” (Id. ¶¶ 29-30.) Jackson threatened to “write up” Rutherford if she did not
accede to his overtures. (Id. ¶ 31.)
Rutherford told Cobb about her experiences in the elevator and being reprimanded by
Jackson. (Id. ¶ 32.) Rutherford expressed to Cobb that she feared she would lose her job if she did
not comply with Jackson’s demands. (Id. ¶ 34.)
Cobb encouraged Rutherford to file a formal complaint of sexual harassment with Atria’s
Human Resources Department employee hotline in order to stop Jackson’s behavior. (ECF No. 22

2

¶ 35.) Rutherford registered a complaint with the hotline on May 1, 2015. (Id. ¶ 36.) After learning
of the complaint from Human Resources, Jackson became angry that Cobb had encouraged
Rutherford to make a complaint; Cobb alleges that Jackson directed discriminatory and retaliatory
animus at Cobb due to his male gender, because of the friendship and confidence Cobb shared
with Rutherford, which made Jackson jealous. (Id. ¶¶ 40-42.)
C. Cobb Provides Information to the Connecticut Department of Health During an
Investigation Into the Death of an Elderly Resident
In January 2014, an elderly resident at the Stamford facility passed away two days after
she wandered outside, becoming exposed to extreme cold for an unknown period of time. (Id. ¶¶
44-47.) Cobb helped locate the resident, took her vital signs, and cared for her until the end of his
shift. (Id. ¶ 45.)
In December 2014, the Connecticut Department of Health (“DOH”) began investigating
the resident’s death by conducting on-site interviews with Atria personnel, including Cobb,
regarding the incident. (Id. ¶¶ 48-50.) Atria senior management, including Jackson, discouraged
Cobb and his coworkers from reaching out to DOH, instructing them to cooperate minimally with
the investigation. (ECF No. 22 ¶ 50.) Cobb and others were instructed to attend DOH investigative
interviews and answer questions, but not to otherwise contact or volunteer information to DOH.
(Id. ¶ 51.)
Cobb participated in at least one interview with DOH in January 2015 and “was able to
review” a compilation of information that DOH had gleaned from its interviews with Atria
personnel. (Id. ¶¶ 52, 55.) Cobb became concerned that DOH’s information was inaccurate or
incomplete, and that Atria management was not forthcoming in its response to the investigation.
(Id. ¶¶ 56-57, 61.) Cobb decided to provide additional information to DOH “outside of the formal

3

investigation,” and did so in a 20- to 30-minute phone call with a DOH investigator, placed from
his cell phone, outside the workplace, and on his own time. (Id. ¶¶ 58-59.)
After DOH concluded its investigation, and a few days before a formal public hearing
regarding the incident, Cobb informed Jackson that he had provided additional information to
DOH outside the formal investigation. (ECF No. 22 ¶ 63.) Jackson “angrily sneered” at Cobb and
told him that he knew what Cobb had done. (Id. ¶ 65.) Atria’s senior management became hostile
to Cobb and blamed him after Atria was determined to be at fault and fined at the conclusion of
the investigation. (Id. ¶ 67.)
D. Cobb’s Termination
On May 29, 2015, less than two weeks after the DOH’s formal hearing and determination
of Atria’s culpability, Cobb was terminated from his position at Atria. (Id. ¶ 68.) Cobb alleges that
he was terminated in retaliation for cooperating with the DOH investigation and for encouraging
Rutherford to file a formal sexual harassment complaint. (Id. ¶¶ 68-69.)
E. Administrative Complaints and This Lawsuit
After receiving a right-to-sue letter from the CHRO on November 22, 2016, Cobb filed
this lawsuit. (Id. ¶ 14; ECF No. 1.) Cobb brought claims for hostile work environment and/or quid
pro quo sexual harassment and discrimination under Title VII (Count One), retaliation under Title
VII (Count Two), gender discrimination and sexual harassment under Conn. Gen. Stat. §§ 46a60(b)(1) and 46a-60(b)(8) (Count Three), retaliation under Conn. Gen. Stat. § 46a-60(b)(4) (Count
Four), retaliation for whistleblowing under Conn. Gen. Stat. § 31-51m (Count Five), and retaliation
for constitutionally protected speech under Conn. Gen. Stat. § 31-51q (Count Six). Defendants
moved to dismiss all of Cobb’s claims except for Count Five, incorporating prior briefing filed
before the Court permitted Cobb to file the Amended Complaint. (ECF No. 12; ECF No. 24.)

4

II.

Legal Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must determine
whether the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
Court accepts all of the complaint’s factual allegations as true when evaluating a motion to dismiss.
Id. at 572. The Court must “draw all reasonable inferences in favor of the non-moving party.”
Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008).
“When a complaint is based solely on wholly conclusory allegations and provides no factual
support for such claims, it is appropriate to grant [a] defendant[’]s motion to dismiss.” Scott v.
Town of Monroe, 306 F. Supp. 2d 191, 198 (D. Conn. 2004). “[W]hile a discrimination complaint
need not allege facts establishing each element of a prima facie case of discrimination to survive
a motion to dismiss, it must at a minimum assert nonconclusory factual matter sufficient to nudge
its claims across the line from conceivable to plausible to proceed.” E.E.O.C. v. Port Auth. of N.Y.
& N.J., 768 F.3d 247, 254 (2d Cir. 2014) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510
(2002); Iqbal, 556 U.S. at 680).
III.

Discussion

A. Gender Discrimination in Violation of Title VII and CFEPA (Counts One and
Three)
Cobb concedes that he lacks standing to assert a claim of hostile work environment
discrimination for any conduct directed at his female coworker. (ECF No. 25 at 2 n.1.) Therefore,
I consider Cobb’s hostile work environment and sexual harassment claims under Title VII and

5

CFEPA abandoned. I consider Defendants’ motion to dismiss Counts One and Three only as it
relates to Plaintiff’s claims that he was subject to discrimination based on his own gender.
To state a claim for discrimination under Title VII and CFEPA,2 a plaintiff must plausibly
allege, “in the absence of direct evidence of discrimination,” that he “is a member of a protected
class, was qualified, suffered an adverse employment action, and has at least minimal support for
the proposition that the employer was motivated by discriminatory intent.” Littlejohn v. City of
N.Y., 795 F.3d 297, 311 (2d Cir. 2015). “As to the last prong, the facts pled need only give
‘plausible support to a minimal inference of discriminatory motivation.’” Sellers v. First Student,
Inc., No. 16-CV-236 (JCH), 2016 WL 6440111, at *4 (D. Conn. Oct. 28, 2016) (quoting Littlejohn,
795 F.3d at 311).
Cobb plausibly alleges that he was a member of a protected class, that he was qualified for
his position,3 and that he suffered an adverse employment action when he was terminated. The
only allegation Cobb puts forth to support his claim that he was terminated because of his gender,
however, is that “Jackson was angry . . . at Plaintiff due to his gender as a male because of the
friendship and confidence Plaintiff enjoyed with Ms. Rutherford, which made Jackson jealous.”
(ECF No. 22 ¶ 42.) Even when all reasonable inferences are drawn in favor of Cobb, this allegation
provides no basis on which to conclude that Defendants were motivated by discriminatory intent

2

The Court analyzes a gender discrimination claim under CFEPA using the same standards that
govern a federal Title VII claim. See Martin v. Town of Westport, 558 F. Supp. 2d 228, 242 (D.
Conn. 2008) (“As with CFEPA discrimination claims, Connecticut courts look to federal law for
guidance when analyzing CFEPA hostile work environment claims.”).
3
Cobb’s allegation that he began working at Atria’s Stamford, Connecticut facility in April 2011,
that he had “consistently positive reviews for all four . . . years of his employment,” and that he
had over “ten . . . years of experience working as a nurse, including significant employment with
assisted living facilities and care of the elderly,” satisfies the minimal burden required to establish
that he was qualified for his position. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87,
92 (2d Cir. 2001) (“[A]ll that is required is that the plaintiff establish basic eligibility for the
position at issue, and not the greater showing that he satisfies the employer.”).
6

in terminating Cobb: Cobb does not allege that Defendants would have treated or actually treated
any woman differently, that Defendants had a history of sex discrimination, that Defendants made
remarks to or about him reflecting discriminatory animus, or that Defendants replaced him with a
woman. See, e.g., Hamzik v. Office for People with Developmental Disab., 859 F. Supp. 2d 265,
279 (N.D.N.Y. 2012) (holding that plaintiff failed to state a Title VII sex discrimination claim
because the complaint was “devoid of any allegations from which it can be reasonably inferred
that the defendants’ action was taken because of his sex”). Cobb alleges that Jackson was jealous
of Cobb’s friendship with Rutherford, but that does not suggest gender-based animus, and he
otherwise only conclusorily asserts that Jackson’s “animus” towards him was “due to his gender.”
(ECF No. 22 ¶ 42.) This is insufficient to survive a motion to dismiss. See Iqbal, 556 U.S. at 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
Cobb’s only argument in support his gender discrimination claim consists of two sentences
in a footnote in his brief: “[w]hether Plaintiff has been subjected to discrimination based upon his
own gender until Title VII and CFEPA is a closer call [than whether Plaintiff may assert a hostile
work environment claim],” and “that a determination on this issue may be premature in the absence
of discovery on the motivation for his termination.” (ECF No. 25 at 2-3 n.2.) Cobb marshals no
support for these assertions, and provides no analysis. He devotes no section of his brief to
responding to Defendants’ arguments that he has insufficiently pled a gender discrimination claim.
Thus, he has abandoned the claim. See e.g., Lami v. Stahl, No. 3:05-cv-1416 (MRK), 2007 WL
3124834, at *1 (D. Conn. Oct. 25, 2007) (“It is well settled that a failure to brief an issue is grounds
to deem the claim abandoned.”). In any event, Cobb fails to plausibly allege that he was subject to

7

gender discrimination in violation of Title VII and the CFEPA. I grant Defendants’ motion to
dismiss Counts One and Three.
B. Retaliation in Violation of Title VII and CFEPA (Counts Two and Four)
Defendants also move to dismiss Cobb’s claims under Title VII and the CFEPA4 that
Defendants retaliated against him for encouraging Rutherford to report sexual harassment. To state
a claim for retaliation under Title VII5 and the CFEPA,6 a plaintiff must plausibly allege that “(1)
defendants discriminated—or took an adverse employment action—against him, (2) ‘because’ he
has opposed any unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 90 (2d Cir. 2015). “Title VII retaliation claims must be proved according to traditional
principles of but-for causation . . . .” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013). Thus, Cobb must allege that the but-for cause of his termination was engagement in
protected activity.7

4

“As with hostile environment claims, Connecticut and federal retaliation claims operate under
the same legal framework.” Flowers v. N. Middlesex YMCA, 3:15-cv-705 (MPS), 2016 WL
1048751, at *7 (D. Conn. Mar. 11, 2016) (citing State v. Comm’n on Human Rights &
Opportunities, 211 Conn. 464 (1989) (“Although the language of [Title VII] and that of the
Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting [CFEPA]
was to make the Connecticut statute coextensive with the federal.”)).
5
The anti-retaliation provision of Title VII states, in relevant part: “It shall be an unlawful
employment practice for an employer to discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment practice by this subchapter, or because
he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
6
The anti-retaliation provision of the CFEPA states, in relevant part: “It shall be a discriminatory
practice in violation of this section . . . [f]or any person [or] employer . . . to discharge, expel or
otherwise discriminate against any person because such person has opposed any discriminatory
employment practice or because such person has filed a complaint or testified or assisted in any
proceeding [before the CHRO].” Conn. Gen. Stat. § 46a-60(b)(4).
7
Cobb is not precluded, of course, from pleading alternative theories of causation under Federal
Rule of Civil Procedure 8(d)(2), despite the ultimate requirement that he prove the but-for cause
of his termination. See, e.g., Fagan v. U.S. Carpet Installation, Inc., 770 F. Supp. 2d 490, 496-97
(E.D.N.Y. 2011) (holding that “by identifying multiple ‘significant factors’ that may have
8

Under Title VII, protected activity includes both “opposing discrimination proscribed by
the statute and . . . participating in Title VII proceedings.” Jute v. Hamilton Sundstrand Corp., 420
F.3d 166, 173 (2d Cir. 2005). Cobb neither alleges nor argues that he participated in Title VII
proceedings; at issue is whether he “oppos[ed] discrimination” within the meaning of Title VII
and the CFEPA.
The opposition clause of Title VII “makes it unlawful for an employer to retaliate against
an individual because [he] ‘opposed any practice’ made unlawful by Title VII . . . .” Littlejohn v.
City of N.Y., 795 F.3d 297, 316 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-3(a)). Protected activity
includes “expressing support of co-workers who have filed formal charges.” Sumner v. U.S. Postal
Serv., 899 F.2d 203, 209 (2d Cir. 1990). The Supreme Court clarified in Crawford v. Metropolitan
Government of Nashville & Davidson County “that any activity designed ‘to resist or antagonize .
. . ; to contend against; to confront; resist; [or] withstand’ discrimination prohibited by Title VII
constitutes a protected oppositional activity.” Littlejohn, 795 F.3d at 317 (quoting Crawford, 555
U.S. 271, 276 (2009)). “[I]f an employee . . . actively ‘support[s]’ other employees in asserting
their Title VII rights or personally ‘complain[s]’ or is ‘critical’ about the ‘discriminatory
employment practices’ of her employer, that employee has engaged in a protected activity under
§ 704(a)’s opposition clause.” Id. at 318 (quoting Sumner, 899 F.2d at 209).
Cobb alleges that he opposed a form of employment discrimination when he “encouraged
Ms. Rutherford to file a formal complaint of sexual harassment with [the HR] employee hotline in
order to get Jackson to stop [his] behavior,” and that Jackson’s anger with him as a result of his
encouragement was a motivating factor in Cobb’s termination. (ECF No. 22 ¶¶ 35, 42-43.) Cobb

motivated the Defendants’ ultimate decision to terminate their employment, the Plaintiffs did not,
as a matter of law, affirmatively allege that age was not the ‘but for’ cause”).
9

does not specifically allege that he communicated his opposition to Defendants, but he does allege
that Jackson was aware of it. (Id. ¶¶ 42-43.)
At least one court in the Second Circuit dismissed a Title VII retaliation claim under what
Defendants argue are analogous circumstances, finding that “expressing one’s belief about
management’s racist tendencies in confidence to a co-worker and giving . . . advice cannot qualify
as opposition to a Title VII violation.” Bliss v. MXK Rest. Corp., 220 F. Supp. 3d 419, 425-26
(S.D.N.Y. 2016). The Court in Bliss found that the plaintiff’s actions—including expressing her
belief to a co-worker that a supervisor was racist and advising the co-worker to pursue a
discrimination claim—were “a far cry from even the ‘informal’ protests outlined by the Sumner
court, which at the very least involved some act of complaining or protesting.” Id. at 425. The Bliss
Court noted that there was no allegation that the plaintiff made management aware of her belief or
that the co-worker actually filed a claim. Id. Cobb argues that his opposition consisted of “more
than mere suspicion of discrimination towards another employee,” because he based his
encouragement on the account of harassment conveyed to him by Rutherford, and because
Rutherford actually registered a complaint in response to Cobb’s encouragement, making his
activity distinguishable from the plaintiff’s in Bliss. (ECF No. 25 at 11.)
At this stage, it is unclear how Defendants became aware of his encouragement of
Rutherford’s filing of a complaint if Cobb’s support for Rutherford was not overt, and whether
Jackson’s alleged “hostility” toward Cobb was the result of Cobb’s “antagoniz[ing],”
“confront[ing],” or “resist[ing]” Jackson’s alleged harassment of Rutherford. Thus, it is premature
to hold as a matter of law that Cobb’s support for Rutherford’s complaint against sexual
harassment is not protected activity under Title VII.

10

Cobb also argues that he adequately asserts a “zone of interests” third-party retaliation
claim, even if his own actions do not qualify as protected activity under Title VII. (ECF No. 25 at
12.) Defendants agree that “under limited circumstances, an employee can establish a claim of
retaliation if he suffers an adverse employment action because someone with whom he shares a
close relationship engaged in protected activity.” (ECF No. 26 at 5.) See Thompson v. N. Am.
Stainless, LP, 562 U.S. 170, 174 (2011) (holding that employer’s alleged act of firing employee in
retaliation against employee’s fiancée, if proven, constituted unlawful retaliation, as “a reasonable
worker might be dissuaded from engaging in protected activity if she knew that her fiancé would
be fired”).
Defendants’ principal objection to Cobb’s third-party retaliation theory is that he has not
alleged that he and Rutherford shared a sufficiently close relationship to support such a claim.
Defendants point out that the cases Cobb relies on involved termination of a fiancée, a daughter,
and a husband in retaliation for the protected activity of a fiancé, father, and wife, respectively.
(ECF No. 26 at 5.) See Thompson, 562 U.S. at 174 (upholding third-party retaliation claim
involving fiancée); Ferguson v. Fairfield Caterers, Inc., No. 3:11-cv-01558 (JAM), 2015 WL
2406156, at *4 (D. Conn. May 20, 2015) (acknowledging in ruling on post-trial motions that
“plaintiff’s retaliation claim was not precluded by the fact that it was her father—and not her—
that engaged in protected activity”); Rajaravivarma v. Bd. of Trs. For the Conn. State Univ. Sys.,
862 F. Supp. 2d 127, 164-65 (D. Conn. 2012) (holding that plaintiff could maintain a third-party
retaliation claim based on his wife’s protected activity).
While Cobb and Rutherford’s relationship was arguably not as close as the relationships in
the cases cited above, there is no rule that the relationship must be familial or even romantic. See,
e.g., E.E.O.C. v. Fred Fuller Oil Co., Inc., No. 13-cv-295-PB, 2014 WL 347635, at *6 (D.N.H.

11

Jan. 31, 2014) (upholding a retaliation claim brought by a “close friend” of an individual who
engaged in protected conduct); Ali v. Dist. of Columbia Govt., 810 F. Supp. 2d 78, 89 (D.D.C.
2011) (denying summary judgment on third-party retaliation claim brought by the “best friend” of
the individual who engaged in protected conduct).
Cobb alleges that Rutherford told him about the harassment she experienced, “as they
shared a collegial work relationship and trust.” (ECF No. 22 ¶ 23.) She “reported her experience”
to Cobb while “on the verge of tears” and “expressed to [Cobb] that she feared that she would lose
her job if she did not comply with Jackson’s demands.” (Id. ¶¶ 32-34.) Cobb alleges that Jackson
became angry and jealous in part “because of the friendship and confidence” that Cobb enjoyed
with Rutherford. (Id. ¶ 42.) Cobb provides no other facts about the nature of his relationship with
Rutherford, however, such as how long they had known each other, whether they often confided
in one another, and whether they had spent time together outside the workplace.
At this early stage of litigation, Cobb’s allegations that he and Rutherford shared a
relationship of friendship and confidence—which was the source of jealousy by Jackson and which
led Rutherford to confide in Cobb about her experience of harassment while on the verge of tears—
is sufficient to plead a third-party retaliation claim. Discovery is necessary to determine whether
terminating Cobb after Rutherford registered a sexual harassment complaint was an act that “well
might have dissuaded a reasonable worker from making or supporting a charge of discrimination,”
as required to support a retaliation claim under Thomas. I deny Defendants’ motion to dismiss
Cobb’s Title VII and CFEPA retaliation claims.
C. Retaliation for Protected Speech Under Conn. Gen. Stat. § 31-51q (Count Six)
Finally, Defendants move to dismiss Cobb’s claim that Defendants retaliated against him
for engaging in protected speech by providing information to DOH investigators about the death

12

of an elderly resident at the facility. “Section 31-51q8 of the Connecticut General Statutes is a
cause of action for violation of the right to free speech under both the United States and
Connecticut Constitutions.” Brown v. Office of State Comptroller, 211 F. Supp. 3d 455, 477-78
(D. Conn. 2016). “To state a claim under Section 31-51q, a plaintiff must allege that (1) he was
exercising rights protected by the First Amendment to the United States Constitution (or an
equivalent provision of the Connecticut Constitution); (2) he was fired on account of his exercise
of such rights; and (3) his exercise of his First Amendment rights [or his rights under the
Connecticut Constitution] did not substantially or materially interfere with his bona fide job
performance or with his working relationship with his employer.” Trusz v. UBS Realty Investors,
No. 3:09cv268 (JBA), 2010 WL 1287148, at *9 (D. Conn. Mar. 30, 2010) (quoting D’Angelo v.
McGoldrick, 239 Conn. 356, 361 (1996)). The statute has been construed to impose the same
prohibitions on private employers that the First Amendment the Connecticut Constitution impose
on public employers. See Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 211-18 (2015).
The Connecticut Supreme Court has held that “textual differences” between the provisions
of the Connecticut Constitution protecting freedom of speech and the First Amendment “warrant
an interpretation [of the Connecticut Constitution’s speech protections] separate and distinct from
that of the first amendment.” Id. at 193. Because a claim under Section 31-51q requires the exercise
of rights under either the First Amendment or the Connecticut Constitution, and because Cobb
invokes both (ECF No. 22 ¶ 99), I first consider whether Cobb sufficiently alleges that he engaged

8

The statute provides, in relevant part: “Any employer . . . who subjects any employee to discipline
or discharge on account of the exercise by such employee of rights guaranteed by the first
amendment to the United States Constitution . . . , provided such activity does not substantially or
materially interfere with the employee’s bona fide job performance or the working relationship
between the employee and the employer, shall be liable to such employee for damages caused by
such discipline or discharge . . . .” Conn. Gen. Stat. § 31-51q.
13

in speech protected by the First Amendment. I then consider whether Cobb sufficiently alleges
that he engaged in speech protected by the Connecticut Constitution.
1. Protected Speech Under the First Amendment
A court must engage in a two-step inquiry to determine whether an employee’s speech is
protected for the purpose of a First Amendment retaliation claim. Matthews v. City of New York,
779 F.3d 167, 172 (2d Cir. 2015). First, a court must determine “whether the employee spoke as a
citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391 U.S. 563, 568 (1968)). “This
step one inquiry in turn encompasses two separate subquestions: (1) whether the subject of the
employee’s speech was a matter of public concern and (2) whether the employee spoke as a citizen
rather than solely as an employee.” Matthews, 779 F.3d at 172 (internal quotation marks omitted).
Under the U.S. Supreme Court’s decision in Garcetti, which the Connecticut Supreme Court has
held applies to claims brought against private employers under Section 31-51q, see Schumann v.
Dianon Sys., Inc., 304 Conn. 585, 611 (2012), “when . . . employees make statements pursuant to
their official duties, the employees are not speaking as citizens for First Amendment purposes, and
the Constitution does not insulate their communications from employer discipline.” Garcetti, 547
U.S. at 421. If the answer to either of the two subquestions is no, that is the end of the matter.
Matthews, 779 F.3d at 172. If the answer to both is yes, courts turn to the remainder of the First
Amendment analysis set forth in Pickering and Connick v. Myers, 461 U.S. 138 (1983). Schumann,
304 Conn. at 604.9

9

I need not address the remainder of the Pickering/Connick analysis, as Defendants do not move
to dismiss on the grounds that Count Six fails that test, arguing only that Cobb’s claim fails because
he did not engage in protected speech.
14

Cobb has sufficiently alleged that the subject of his speech was a matter of public concern.
“A matter of public concern is one that relates to any matter of political, social, or other concern
to the community.” Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013) (internal quotation marks
omitted). “Whether an employee’s speech addresses a matter of public concern must be determined
by the content, form, and context of a given statement . . . .” Id. Courts also consider “whether the
speech was calculated to redress personal grievances or whether it had a broader public purpose.”
Id. Cobb alleges that he provided a DOH investigator “with additional information regarding the
January 2014 incident” but does not specifically allege the content of his statements. (ECF No. 22
¶ 59.) Nonetheless, the form of his communications—an off-the-clock cell phone call to a state
investigator—and the context of the speech, a state agency investigation into the death of a resident
at an assisted living facility, suggest that Cobb’s speech was calculated to have a broader public
purpose and to address an issue of concern to the community, namely, whether assisted living
facility personnel properly supervised elderly residents, and went beyond a personal grievance.
His allegation that he was “concerned that Atria senior management was not forthcoming in the
adequacy of its cooperation and response to the DOH investigation” further suggests that he spoke
to address a matter of social concern—that a corporation in the assisted living industry (which
Cobb alleges employs over 13,500 people) was mishandling the response to a state agency
investigation into a death. (Id. ¶¶ 11, 61.) Especially because I must draw reasonable inferences in
his favor at this stage, I conclude that Cobb’s speech related to a matter of public concern.
As a nurse at an assisted living facility tasked with caring for and supervising residents,
however, Cobb spoke pursuant to his official duties, and therefore spoke solely as an employee,
rather than as a citizen, for the purpose of his First Amendment retaliation claim. “[T]he speech at
issue does not merit the protection of the First Amendment if the speech owed its existence to the

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plaintiff’s job duties and was made in furtherance of those duties.” Gwozdz v. Genesis Physician
Servs., No. 13-cv-317 (AWT), 2014 WL 943116, at *2 (D. Conn. Mar. 11, 2014) (quoting Looney
v. Black, 702 F.3d 701, 717 (2d Cir. 2012)) (internal quotation marks and alterations omitted). The
Court’s inquiry as to whether Cobb made statements pursuant to his official duties “is ‘a practical
one’ . . . and entails ‘consideration of the employee’s level of responsibility and the context in
which the statements were made.’” Gwozdz, 2014 WL 943116, at *2 (quoting Garcetti, 547 U.S.
at 424; Schumann, 304 Conn. at 604). “Put simply, on-the-job speech generally is ‘pursuant to’ an
employee’s duties when it is ‘part-and-parcel of his concerns about his ability to properly execute
his duties.’” Schumann, 304 Conn. at 614 (quoting Weintraub v. Bd. of Educ., 593 F.3d 196, 203
(2d Cir. 2010)).
Courts have found that employee speech regarding patient safety in fields related to
healthcare is unprotected by the First Amendment. See, e.g., Schumann, 304 Conn. at 616 (holding
that pathologist’s statements about the safety of a new product to the director of defendant’s
medical laboratory were pursuant to his job duties and therefore unprotected speech); Gwozdz,
2014 WL 943116, at *4 (granting motion to dismiss Section 31-51q claim brought by nurse who
reported workplace safety and health hazards to her superiors, the Department of Labor, and the
Board of Examiners for Nursing outside the chain of command).
Cobb alleges that he became involved with the January 2014 incident because, as a nurse
at the facility, he “took [the] resident’s vital signs and provided care [to] the resident until the end
of his shift.” (ECF No. 22 ¶ 45.) He participated in at least one workplace interview about the
January 2014 incident because he was instructed to do so by his employer. (Id. ¶¶ 51-52.) Because
“[p]art of the investigation related to the adequacy of the security of the building and the amount
of oversight being provided to the elderly residents” (Id. ¶ 53), and because Cobb “was motivated

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to seek out additional opportunities to provide information and testimony to the DOH in light of
his experience providing responsible and effective patient care” (Id. ¶ 60), Cobb’s statements
regarding the resident’s safety were “part-and-parcel of his concerns about his ability to properly
execute his duties” as an assisted living facility nurse and therefore are not protected speech. See
Schumann, 304 Conn. at 615. Though he also alleges that he provided “additional information [to
the DOH investigator] regarding the January 2014 Incident” due to his “concern[] about the
amount of cooperation being provided to the DOH investigation by Atria management, Cobb’s
statements “owed their existence to [his] job duties and were made in furtherance of [his] duties”
of ensuring adequate care and supervision for the elderly residents at the facility. Gwozdz, 2014
WL 943116, at *4.
The fact that Cobb made his statements outside the chain of command does not render the
speech protected. See Anemone v. Metro. Transp. Auth., 629 F.3d 97, 116 (2d Cir. 2011) (holding
that security director’s statements outside chain of command to district attorney about corruption
within the transportation authority were not protected); Gwozdz, 2014 WL 943116, at *3 (that
nurse made statements to the Department of Labor and the Board of Examiners for Nursing outside
chain of command did not render speech protected). Therefore, Cobb’s Section 31-51q claim fails
to the extent it rests on the First Amendment.
2. Protected Speech Under the Connecticut Constitution
Cobb’s Section 31-51q claim survives, however, as his allegation that he engaged in speech
protected by the Connecticut Constitution is governed by a less stringent standard. The
Connecticut Supreme Court held in Trusz v. UBS Realty Investors, LLC that the Connecticut
Constitution provides broader protection for employee speech than does the federal Constitution,
and protects even speech made pursuant to an employee’s official job duties as long as the speech

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is a “comment on official dishonesty, deliberately unconstitutional action, other serious
wrongdoing, or threats to health and safety . . . .” 319 Conn. 175, 211 (2015) (quoting Garcetti,
547 U.S. at 435 (Souter, J., dissenting)); see also id. at 179 (holding that section 31-51q “extends
the same protection to employee speech pursuant to official job duties in the private workplace”
as is provided by the Connecticut Constitution).
Though Cobb spoke pursuant to his official duties as a nurse, Cobb also alleges that he
“was very concerned that the information contained in the DOH’s compilation [of information
gleaned from interviewing Atria personnel] was inaccurate and incomplete” and that he “was
additionally concerned that Atria senior management was not forthcoming in the adequacy of its
cooperation and response to the DOH investigation.” (ECF No. 22 ¶¶ 56, 61.) Construed in the
light most favorable to Cobb, these allegations set forth a plausible claim that his statements to the
DOH investigator outside of his workplace interviews were, at least in part, a comment on
Defendants’ “official dishonesty” or “serious wrongdoing.” See Brown v. Office of State
Comptroller, 211 F. Supp. 3d 455, 478-79 (D. Conn. 2016) (denying motion to dismiss Section
31-51q claim, as plaintiff’s claim that she made reports to auditors in an attempt to uncover
employer’s unethical practices sufficiently alleged official dishonesty); Trusz v. UBS Realty, No.
3:09-cv-00268 (JAM), 2016 WL 1559563, at *9 (D. Conn. Apr. 18, 2016) (holding that speech
accusing employer of regulatory or civil wrongs could constitute “serious wrongdoing”).
Moreover, drawing all reasonable inferences in Cobb’s favor, I find that Cobb’s concerns for
“providing responsible and effective patient care” in the wake of a resident’s death suggests that
his speech may also have been a comment on “threats to health and safety” and therefore protected.
(ECF No. 22 ¶ 60.) Because I find that Cobb sufficiently alleged that he engaged in protected

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speech under state law, I deny Defendants’ motion to dismiss Cobb’s Section 31-51q retaliation
claim to the extent it is based on the Connecticut Constitution.
IV.

Conclusion

For the reasons stated above, the motion to dismiss is GRANTED in part and DENIED in
part. Counts One and Three are DISMISSED. The case will proceed on Counts Two, Four, Five,
and Six.

IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
January 29, 2018

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