Vereen v. Public Works et al

Filing 36

ORDER denying 31 Motion to Strike for the reasons set forth in the Memorandum of Decision attached. Signed by Judge Vanessa L. Bryant on 2/20/2018. (Hudson, C)

NITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAIRWOOD VEREEN,
Plaintiff,

:
:
:

v.

:
:
CITY OF NEW HAVEN PUBLIC WORKS :
DEPT., STEPHEN LIBRANDI,
:
JEFFREY PESCOSOLIDO,
:
EDWARD D’ANGELO, LYNWOOD
:
DORSEY,
:
Defendants.
:

CIVIL CASE NUMBER
3:17-cv-01509 (VLB)
February 20, 2018

MEMORANDUM OF DECISION DENYING MOTION TO STRIKE
This is a hostile work environment case. Plaintiff includes in his Amended
Complaint [Dkt. 27] allegations that his coworkers engaged in racially charged
conduct in Plaintiff's presence outside of the workplace as well as in the
workplace while Plaintiff was absent. Defendant seeks to strike these allegations.
[Dkt. 31.] For the reasons stated below, the motion is DENIED.
Federal Rule of civil Procedure 12(f) provides the standard for granting a
motion to strike:
The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The court
may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading
or, if a response is not allowed, within 21 days after being served
with the pleading.
As an initial matter, in this Circuit, motions to strike are generally looked
upon with disfavor. Harris v. United Techs. Corp., 241 F.R.D. 95, 99 (D. Conn.
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2007); D’Agostino v. Housing Auth. Of Waterbury, 3:05-cv-1057, 2006 WL 1821355,
at *1 (D. Conn. June 30, 2006); Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp.
2d 113, 117 (S.D.N.Y. 2012) (quoting Chenensky v. N.Y. Life Ins. Co., No. 07 Civ.
11504, 2011 WL 1795305, at *1 (S.D.N.Y. Apr. 27, 2011)); accord Calibuso v. Bank
of Am. Corp., 893 F. Supp. 2d 374, 384 (E.D.N.Y. Sept. 27, 2012). The “courts
should not tamper with the pleadings unless there is a strong reason for doing
so.” Harris, 421 F.R.D. at 99 (citing Lipsky v. Commonwealth United Corp., 551
F.2d 887, 893 (2d Cir. 1976); Marshall v. New York State Public High School
Athletic Assoc., 2017 WL 6003228, at *10 (W.D.N.Y. Dec. 4, 2017).
Turning to the merits of this case, Defendant correctly points out that to
succeed on his claim of hostile work environment, Plaintiff must demonstrate that
the workplace was “permeated with discriminatory intimidation, ridicule, and
insult that was sufficiently severe or pervasive to alter the conditions of his
employment and create an abusive working environment.” Sanchez v. Univ. of
Conn. Health Care, 292 F. Supp. 2d 385, 395-396 (D. Conn. 2003) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); see also Perry v. Ethan Allen, Inc., 115
F.3d 143, 149 (2d Cir. 1997) (“One of the critical inquiries in a hostile environment
claim must be the environment. Evidence of a general work atmosphere . . . as
well as evidence of specific hostility directed toward the plaintiff . . . is an
important factor in evaluating the claim.”); Feliciano v. Alpha Sector, Inc., No. 00
CIV. 9309 (AGS), 2002 WL 1492139, at *8 (S.D.N.Y. July 12, 2002) (“[I]n order to be
actionable the incidents of harassment must occur in concert or with a regularity
that can be reasonably termed pervasive”). Defendant challenges paragraphs of
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the Amended Complaint which allege conduct that occurred outside of the
workplace or while Plaintiff was out of work on medical leave. [Dkt. 38
(Memorandum in Support of Motion to Strike) (challenging paragraphs 25, 26, 29,
40-41, and Exhibit B of the Amended Complaint).]
Conduct wholly outside of the workplace has been held insufficient to form
the basis of a hostile work environment claim. See Feliciano v. Alpha Sector, Inc.,
No. 00 CIV. 9309 (AGS), 2002 WL 1492139, at *8 (S.D.N.Y. July 12, 2002) (noting
allegations “including the alleged kiss, the alleged telephone calls to Feliciano's
home, and the ‘surprise’ meeting at the restaurant all occurred outside of the
workplace,” and finding the employer not liable for such “hostile sexual acts
resulting from nonwork-related, off-duty interactions between co-employees”);
Devlin v. Teachers' Ins. & Annuity Ass'n of Am., No. 02 CIV. 3228 (JSR), 2003 WL
1738969, at *2 (S.D.N.Y. Apr. 2, 2003) ("As a general rule, employers are not
responsible under Title VII for hostile sexual acts resulting from nonwork-related,
off-duty interactions between co-workers, because those actions are not part of
the work environment.”)
Similarly, conduct that occurs while an employee is out on medical leave
has been found insufficient to form the basis of a hostile work environment claim
in light of the fact that, since the employee is absent from work, such conduct
cannot affect an employee's working conditions. See Gowesky v. Singing River
Hosp. Sys., 321 F.3d 503, 510 (5th Cir. 2003) (upholding summary judgment
because, among other things, the conduct complained of occurred while plaintiff
was out of work on medical leave.) Conduct which occurs outside the
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employee’s presence, which the employee only learned of through hearsay,
“cannot be said [to] adversely affect[] the terms and conditions of Plaintiff’s
employment.” Dabney v. Christmas Tree Shops, 958 F. Supp. 2d 439, 358-59
(S.D.N.Y. 2013).
Had Plaintiff only relied on conduct which occurred outside the workplace
or in the workplace while he was absent, the Court would agree that the
paragraphs should be stricken. However, Plaintiff does not allege that these
occurrences are actionable; they are not separate claims at all. Instead, Plaintiff
includes these allegations in his Amended Complaint as facts supporting his
claim that occurrences in the workplace were not benign, isolated incidents or
stray comments, but rather were part of a series of events motivated by the racial
bigotry of the perpetrators. These allegations are accordingly relevant to
Plaintiff’s hostile workplace claim, and shall not be stricken. Schaefer v. Gen.
Elec. Co., 3:07-cv-0858, 2008 WL 649189, at *3 (D. Conn. Jan. 22, 2008) (“Because
pleadings are to be construed liberally, motions to strike are generally not
favored and will be granted only upon a showing that the allegations in question
have no possible bearing on the subject matter of the litigation.”); see also
Echevarria v. Utitec, Inc., 2017 WL 4316390, at *7 (D. Conn. Sept, 28, 2017) (finding
allegations of out-of-work harassment relevant to determining the “severity or
pervasiveness” of the alleged workplace harassment); Nassry v. St. Luke’s
Roosevelt Hospital, 2016 WL 1274576, at *9 (S.D.N.Y. Mar. 31, 2016) (“Evidence of
harassment . . . occurring outside Plaintiff’s presence can be relevant to a hostile
work environment claim.”); Harris, 421 F.R.D. at 99 (finding references in the
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complaint regarding defendant’s stated reasons for firing plaintiff in 1991 could
be relevant to defendant’s refusal to rehire him in 2004, and should not be
stricken, even though plaintiff could not state a viable claim challenging the 1991
firing on its own). Defendant’s Motion to Strike is DENIED.
The parties are reminded that pursuant to the Court's scheduling order
entered October 20, 2017 all discovery, including but not limited to depositions of
expert witnesses, must be completed by May 1, 2018. Dispositive motions are
due by June 15, 2018. If no dispositive motions are filed, the joint trial
memorandum is due by July 16, 2018 and must adhere to the Court's chambers
practices, which may be found on the District of Connecticut website. Jury
selection will take place on September 4, 2018. If dispositive motions are filed,
the joint trial memorandum is due by February 11, 2019, and jury selection will
take place on April 2, 2019.
Finally, if at any time the parties believe settlement discussions would be
fruitful, they are ordered to file a request for a referral to a magistrate judge for a
settlement conference and promptly schedule the conference when the order of
referral is entered. A timely request for a referral and scheduling of the
settlement conference are required; the scheduling order will not be extended to
accommodate settlement discussions, as they are an integral part of the litigation
process.

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IT IS SO ORDERED.
_________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: February 20, 2018

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