Concepcion v. Continuum of Care

Filing 49

ORDER granting 27 Motion to Dismiss for the reasons set forth in the attached Memorandum of Decision. This case is dismissed without prejudice. Plaintiff may file a motion to reopen together with an amended complaint within 21 days of the date of this Order, as to her claim for disability retaliation only, alleging exhaustion and attaching a notice of right to sue letter. The Clerk is directed to close this file. Signed by Judge Vanessa L. Bryant on 12/12/2018. (Lindberg, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

VIVIAN CONCEPCION,
Plaintiff,
v.
CONTINUUM OF CARE,
Defendant.

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No. 3:17-CV-1854 (VLB)

December 12, 2018

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS [DKT. 27]
On November 3, 2017, Plaintiff Vivian Concepcion (“Plaintiff”) filed the
instant employment discrimination action pro se against her former employer
Defendant Continuum of Care (“Defendant”). Dkt. 1. On June 29, 2018, Defendant
moved to dismiss. Dkt. 27. The Court granted Plaintiff’s motion for an extension
of time to respond to the motion to dismiss. Dkt. 35. Plaintiff’s deadline to oppose
the motion to dismiss was August 20, 2018. Plaintiff failed to file a response. On
October 26, 2018, the Court ordered Plaintiff to file a response to the motion to
dismiss and notified her that if she failed to do so her complaint would be
dismissed.

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Dkt. 42. On November 5, 2018, the Court granted the motion to

On the final day to comply with the Court’s order, Plaintiff made a late afternoon in-person
filing. Although the filing is dated November 2, 2018, the Court was not aware of it until
after it granted Defendant’s motion to dismiss on November 5, 2018. Dkt. 44. Plaintiff’s
filing fails to substantively respond to the motion to dismiss. It contains medical records
and filings before the Connecticut Commission on Human Rights and Opportunities
(“CHRO”). Plaintiff does not include a memorandum of law. However, because Plaintiff
filed a response and in light of the Second Circuit’s preference for resolving disputes on
the merits, the Court further articulates its ruling on Defendant’s motion to dismiss.
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dismiss. Dkt. 44.

For the following additional reasons, Defendant’s motion to

dismiss is GRANTED.
I.

Background
In her form complaint, Plaintiff states that her action is brought pursuant to

Title VII of the Civil Rights Act of 1964, the Rehabilitation Act, and the Americans
with Disabilities Act (“ADA”). Dkt. 1. She alleges that Defendant’s conduct was
based on her race, sex, and national origin. She also claims she was discriminated
against on the basis of her anxiety disability, race, and age for promotion. However,
when asked in the form complaint to describe facts surrounding her discrimination
claim, Plaintiff only states that her supervisor told her that they “were going to have
a supervision” and Plaintiff responded that she “did not want to participate in a
supervision” because she “did not feel well at the time.” Id. Next, she claims her
supervisor followed her around the client’s home, stated repeatedly that they
needed to do the supervision, and got into Plaintiff’s “personal space.” Id. Plaintiff
previously filed charges with the CHRO. She did not attach a Notice of Right to
Sue letter. She seeks reinstatement and $120,000. Id.
Plaintiff attached a seven-page letter to her form complaint which is dated
July 12, 2015 and addressed to the CHRO.2 It is unsigned and there is no indication
that it was ever received by the CHRO. Plaintiff does not expressly incorporate the
letter into the form complaint. In response to the form complaint’s request that
Plaintiff explain why she disputes the CHRO’s decision that there was no probable

Defendant’s motion to dismiss fails to address the letter attached to the form complaint
and the additional discrimination claims contained therein. Because the Court considers
the letter part of Plaintiff’s complaint, as discussed herein, the Court will analyze all of the
allegations in the letter.
2

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cause to believe discrimination occurred, she states “because of my complaint of
discrimination with CHRO papers attach [sic].” Id. The letter states that it is her
response to Defendant’s answer before the CHRO. Id. Plaintiff discusses her job
performance and complaints of discrimination, including Family and Medical Leave
Act (“FMLA”) interference and retaliation, failure to accommodate and retaliation
under the ADA and race discrimination. Id. She claims inter alia that Defendant
harassed her and discriminated against her after she disclosed an anxiety disorder
and requested an accommodation. Id.

Plaintiff alleges that she had anxiety,

specifically that she “did not feel comfortable going down into the basement alone,
especially during [her] night shifts.” Id. Plaintiff acknowledges that it was every
staff person’s responsibility to do laundry on his or her shift and the laundry was
located in the basement. Id. She alleges she requested an accommodation and
provided Defendant with a medical note. Ultimately, she alleges that Defendant
placed her on a final written warning for failure to do the laundry. Plaintiff was
terminated on July 18, 2015.

Plaintiff makes no specific factual allegations

regarding her termination in the form complaint or the letter attached to it.
Defendant moves to dismiss the complaint on the grounds that Plaintiff
failed to properly plead exhaustion and failed to exhaust her claims of race, sex,
national origin, age and any claim related to promotion. See Dkt. 28. Defendant
also argues that Plaintiff’s disability discrimination claims fail to state a claim for
relief. Id. In support of its motion to dismiss, Defendant attaches several exhibits,
including Plaintiff’s original complaint before the CHRO dated May 11, 2015 and
Plaintiff’s amended complaint dated March 10, 2016. Id. at Exs. 2, 4.

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II.

Consideration of Materials Outside the Complaint
As explained above, both parties have attached additional materials to their

pleadings. Plaintiff attached a letter addressed to the CHRO to her form complaint.
Defendant attached several exhibits to its motion to dismiss: (1) Plaintiff’s CHRO
complaint dated May 11, 2015, (2) EEOC notice of charge dated August 5, 2015, (3)
Plaintiff’s amended CHRO complaint dated March 10, 2016, and (4) notice of final
agency action dated May 11, 2017. Id. at Exs. 1-4.
On a motion to dismiss, the Court is permitted to consider (1) documents
attached to the complaint as an exhibit or incorporated by reference, (2) matters of
which judicial notice may be taken, and (3) documents either in plaintiff’s
possession or of which plaintiff had knowledge and relied on in filing the complaint.
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Mancuso
v. Dunbar, No. 3:08-CV-1018 (VLB), 2010 WL 466004, at *4 n.3 (D. Conn. Feb. 5, 2010)
(“The Court may take judicial notice of documentation from administrative
proceedings without converting the current motion into a motion for summary
judgment.”).

Here, the Court will consider the documents submitted by both

parties. Plaintiff filed her letter to the CHRO along with her form complaint. She
does not expressly incorporate the letter into her complaint, but she references it.
The Court finds that this is sufficient given Plaintiff’s pro se status. The Court will
also take judicial notice of the underlying CHRO complaints submitted by
Defendant as exhibits to its motion to dismiss.

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III.

Defendant’s Motion to Dismiss for Failure to State a Claim
Plaintiff alleges disability discrimination and retaliation, FMLA interference

and retaliation, and discrimination based on race, sex, age and national origin.
Defendant moves to dismiss the complaint on the grounds that Plaintiff failed to
properly allege exhaustion and failed to exhaust her claims of race, sex, national
origin, age and any claim relation to promotion. See Dkt. 28. Defendant also argues
that Plaintiff’s disability discrimination claims fail to state a claim for relief. Id.
A.

Legal Standard

“‘To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Sarmiento v. U.S., 678 F.3d 147, 152 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual allegations,
“[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the
elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678
(internal citation and quotation omitted). “Where a complaint pleads facts that are
‘merely consistent with’ a defendant's liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (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.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the

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complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility standard
is not akin to a probability requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations
omitted).
“Pro se complaints ‘must be construed liberally and interpreted to raise the
strongest arguments that they suggest.’” Sykes v. Bank of Am., 723 F.3d 399, 403
(2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010)
(discussing special rules of solicitude for pro se litigants). Although courts still
have an obligation to interpret “a pro se complaint liberally,” the complaint must
include sufficient factual allegations to meet the standard of facial plausibility. See
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).
B.

Exhaustion

Defendant argues that Plaintiff failed to properly plead exhaustion of
administrative remedies because she failed to attach a notice of the right to sue
letter to her complaint. Defendant argues that Plaintiff’s complaint should be
dismissed on this basis. The Supreme Court has held that “filing a timely charge
of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal

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court, but a requirement that, like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982). The Second Circuit has explained that “a plaintiff’s failure to obtain a
notice-of-right-to-sue-letter is not a jurisdictional bar, but only a precondition to
bringing a Title VII action that can be waived by the parties or the court.” Pietras v.
Bd. of Fire Comm'rs of Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999). In
this case, Plaintiff filed a charge with the CHRO, but she did not file a notice of right
to sue letter. In her form complaint, Plaintiff states that she filed charges with the
CHRO and that the EEOC issued a right to sue letter in 2014. This date appears to
be incorrect since Plaintiff did not bring her CHRO claim until 2015. Regardless,
Plaintiff does not attach her right to sue letter or allege that this precondition is
subject to waiver, estoppel or equitable tolling. Thus, the Court finds that she has
not alleged that she has exhausted her administrative remedies.
Courts in this circuit have granted pro se plaintiffs leave to amend where
they failed to attach a right to sue letter or allege that the exhaustion requirement
was otherwise waived or tolled. See, e.g., Duarte v. W. Conn. Health Network, No.
3:16-CV-01757 (JAM), 2017 WL 3499937, at *1 (D. Conn. July 11, 2017) (dismissing
complaint but allowing pro se plaintiff to amend to allege exhaustion and attach
release of jurisdiction from CHRO); Canty v. Wackenhut Corrections Corp., 255 F.
Supp. 2d 113, 117 (E.D.N.Y. 2003) (dismissing complaint for failure to allege
exhaustion of administrative remedies but allowing pro se plaintiff to amend). For
the foregoing reasons, the Court dismisses Plaintiff’s claims but will allow Plaintiff

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to move to reopen as to her disability retaliation claim only to allege exhaustion
and attach a notice of right to sue letter.
C.

Analysis
1.

Disability Discrimination Claims

Plaintiff’s allegations can be construed to allege disability discrimination
claims based on failure to accommodate and retaliation. To state a claim for failure
to accommodate, a plaintiff must show that: “(1) plaintiff is a person with a
disability under the meaning of the ADA; (2) an employer covered by the statute
had notice of his disability; (3) with reasonable accommodation, plaintiff could
perform the essential functions of the job at issue; and (4) the employer has refused
to make such accommodations.” Rodal v. Anesthesia Grp. of Onondaga, P.C., 369
F.3d 113, 118 (2d Cir. 2004); see also Ray v. Weit, 708 Fed. App’x 719, 721 (citing
McBride v. BIC Consumer Prod. Mfg. Co. Inc., 583 F.3d 92, 97 (2d Cir. 2009). Plaintiff
must also allege that she is a “qualified individual” under the ADA, which is “an
individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” McBride, 583 F.3d at 96 (2d Cir. 2009) (quoting 42 U.S.C. § 12111(8)).
The ADA, as amended in 2009, defines “disability” with respect to an
individual as “(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment.”3 42 U.S.C. § 12102(1). The

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The Court will address the first prong of the disability analysis. Plaintiff does not allege
that she has a record of an impairment or that Defendant regarded her as having an
impairment. However, even if Plaintiff’s allegations could reasonably be construed as
alleging that Defendant regarded Plaintiff has having a disability, her claim would still fail.

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definition of disability must be “construed in favor of broad coverage.” Id. at
12102(4)(A). To determine whether a plaintiff suffers from a disability, the Court
must consider: “(1) whether plaintiff had an impairment; (2) whether the impairment
affected a ‘major life activity’ within the meaning of the ADA; and (3) whether that
major life activity was substantially limited by the impairment.”4 Laface, No.
2:18CV01314, 2018 WL 6002395, at *6 (internal citation and quotation marks
omitted). If Plaintiff fails to satisfy any of these three prongs, her discrimination
claim must be dismissed. Id.
Plaintiff alleges that she has anxiety, but she fails to allege that her anxiety
affected a major life activity. Major life activities include “caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). Plaintiff alleges that her
anxiety affected her ability to go into a basement at night, but her claim fails
because this is not a major life activity. Pineda v. ESPN, Inc., No. 3:18-CV-325
(MPS), 2018 WL 5268123, at *4 (D. Conn. Oct. 23, 2018) (dismissing discrimination
claim based on PTSD where plaintiff failed to allege how her condition substantially

“This inquiry turns on the employer’s perception of the employee and is therefore a
question of intent, not whether the employee has a disability.” Laface v. E. Suffolk Boces,
No. 218CV01314ADSAKT, 2018 WL 6002395, at *7 (E.D.N.Y. Nov. 15, 2018) (internal
citations and quotation marks omitted). Plaintiff alleged that Defendant told her that she
was coming up with a “myriad of reasons” for why she did not have to do the laundry.
Indeed, Plaintiff does not allege that Defendant regarded her as disabled, but that
Defendant thought she was making excuses to avoid doing her job.
4
Plaintiff checked the box in her form complaint indicating that she was bringing her action
pursuant to the Rehabilitation Act. Plaintiff does not make any specific allegations about
this statute, however, it adopts the definition of disability set forth in the ADA. Therefore,
to the extent Plaintiff alleged a Rehabilitation Act claim, it fails for the same reasons her
ADA claim fails. See 29 U.S.C. § 705(9).

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limits a major life activity); see also Cain v. Mandl Coll. of Allied Health, Mandl Coll.,
Inc., No. 14 CIV. 1729 (ER), 2016 WL 5799407, at *7 (S.D.N.Y. Sept. 30, 2016)
(dismissing pro se complaint that contained “no allegations as to how Plaintiff’s
PTSD ‘substantially limits’ one or more of her ‘major life activities’”); see also
Laface, No. 218CV01314, 2018 WL 6002395, at *6 (dismissing discrimination claim
where plaintiff alleged that his disability limited his ability to drive on the grounds
that driving is not a major life activity). Plaintiff does not allege that her anxiety
affected her from performing the major life activity of working. In fact, Plaintiff
states that “the only job function that was performed in the basement was laundry.”
Dkt. 1. Plaintiff was able to perform all the other functions of her job and therefore
she could have performed a similar job where the laundry was not located in the
basement. See Mazzeo v. Mnuchin, No. 17-2686, 2018 WL 4492847, at *2 (2d Cir.
Sept. 19, 2018) (“Although working is considered a major life activity, “[t]he
inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.”) (internal citations and quotation
marks omitted). Plaintiff fails to allege that she is a person with a disability under
the meaning of the ADA, thus her failure to accommodate claim must fail.
The final step in determining whether a plaintiff has a disability under the
ADA is to determine whether she has alleged that her impairment substantially
limits any major life activities. Plaintiff has not successfully pled that her
impairment limits a major life activity, therefore the Court is unable to address this
element. Because Plaintiff cannot establish her disability, her claim for failure to
accommodate fails.

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Plaintiff’s complaint states a claim for disability retaliation.5 “To establish a
prima facie case of retaliation under the ADA, a plaintiff must establish that: (1) the
employee was engaged in an activity protected by the ADA, (2) the employer was
aware of that activity, (3) an employment action adverse to the plaintiff occurred,
and (4) there existed a causal connection between the protected activity and the
adverse employment action.”6 Logan v. SecTek, Inc., 632 F.Supp.2d, 179, 184 (D.
Conn. 2009) (quoting Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d
Cir. 2000).
As to the first element, a plaintiff engaged in protected activity if she
“opposed any act or practice made unlawful” by the ADA or “made a charge,
testified, assisted or participated in any manner in an investigation, proceeding, or
hearing” under the ADA. 42 U.S.C § 12203(a). Plaintiff engaged in protected
activity when she requested a reasonable accommodation and filed her charge with
the CHRO. Defendant was aware of Plaintiff’s accommodation request and CHRO
charge.
With regard to adverse employment action, Plaintiff alleges that after she
requested an accommodation, she was placed on a final written warning. Plaintiff

Defendant’s motion to dismiss makes cursory arguments in response to Plaintiff’s
disability claims. First, Defendant argues that Plaintiff failed to exhaust her administrative
remedies because her amended complaint before the CHRO does not reference the ADA.
The Court finds that Plaintiff’s state disability discrimination claims are reasonably related
to her ADA claims and therefore she has exhausted her administrative remedies. Second,
the Court is not persuaded by Defendant’s argument that the form complaint does not
contain allegations of discrimination because as discussed infra, the Court will consider
the letter attached to Plaintiff’s complaint.
6
The Rehabilitation Act contains “similar provisions against retaliation and [is] governed
in this respect by the same standards as the ADA.” Treglia v. Town of Manlius, 313 F.3d
713, 719 (2d Cir. 2002). Therefore, Plaintiff’s Rehabilitation Act claim for retaliation survives
to the same extent as her ADA claim for retaliation.
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does not directly allege that she was terminated in retaliation for requesting an
accommodation or filing her charge before the CHRO, but she alleges that
Defendant admonished her for “having expressed [her] disability and fears” and
that her termination was retaliatory. Dkt. 1. Plaintiff’s first allegation does not rise
to the level of an adverse employment action because such actions must constitute
“a materially adverse change in the terms and conditions of employment.”
Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004).
However, termination suffices as an adverse employment action. Id. Therefore,
the Court finds that Plaintiff has established an adverse employment action.
Plaintiff’s allegations meet the final hurdle to show causation. “As other
courts within the Second Circuit have held, temporal proximity is sufficient to raise
an inference of discrimination to plausibly state a claim of employment
discrimination.” Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d
426, 437 (E.D.N.Y. 2015) (quoting Shlafer v. Wackenhut Corp., 837 F. Supp. 2d 20,
27 (D. Conn. 2011)); see also Siuzdak v. Lynch, No. 14-CV-001543 (VAB), 2016 WL
868801, at *6 (D. Conn. Mar. 7, 2016) (denying motion to dismiss where plaintiff filed
EEOC complaint and retaliatory investigation occurred four months later). Plaintiff
sufficiently alleges that a causal connection existed between her request for a
reasonable accommodation and the adverse employment action. Here, Plaintiff
alleges that she met with Defendant on May 11, 2015 to discuss her
accommodations. This is the same day Plaintiff filed her charge with the CHRO. In
her form complaint, Plaintiff states that she was terminated on July 18, 2015.
Taking these allegations together, the Court finds that a causal connection existed

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between Plaintiff’s alleged discussion of her accommodation and her termination.
However, as explained above, the Court allows Plaintiff twenty-one days to move
to reopen to allege exhaustion and attach a notice of right to sue letter.
2.

Race, Sex, National Origin and Age Discrimination Claims

Plaintiff’s race, sex, national origin and age discrimination claims fail
because she did not exhaust her administrative remedies. “Exhaustion of
administrative remedies through the EEOC is ‘an essential element’ of the Title VII
and ADEA statutory schemes and, as such, a precondition to bringing such claims
in federal court.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686
(2d Cir. 2001) (internal citations and quotation marks omitted). “[A] district court
only has jurisdiction to hear such claims where they were either included in an
EEOC charge or are based on conduct subsequent to the charge which is
‘reasonably related’ to that alleged in the EEOC charge.” Butts v. City of N.Y. Dep’t
of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) superseded by statute on
other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir.
1998). “A claim is considered reasonably related if the conduct complained of
would fall within the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge that was made.” Deravin v. Kerik, 335 F.3d 195,
200-01 (2d Cir. 2003) (internal citation and quotation marks omitted).
Plaintiff brought her complaint before the CHRO on May 11, 2015 and
amended her complaint on March 10, 2016. Plaintiff did not allege claims for race,
sex, national origin or age discrimination in either complaint. The complaints
allege only disability discrimination and retaliation based on her anxiety disorder

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and Defendant’s alleged failure to provide an accommodation. Therefore, the Court
dismisses Plaintiff’s claims of race, sex, national origin and age discrimination
because they are not based on conduct reasonably related to disability
discrimination.
Even if these claims were reasonably related to the claims raised in the
CHRO complaint, they would still fail. To state a claim for discrimination under
Title VII, “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.” Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 87 (2d Cir. 2015); see also Gupte v. Watertown Bd. of Educ., No. 3:17-CV283 (JCH), 2018 WL 4054880, at *5 (D. Conn. Aug. 24, 2018) (“To state a claim for
age discrimination under the ADEA, a plaintiff must plausibly allege that (1) her
employer took adverse action against her, and (2) that age was the ‘but for’ cause
in the employer’s adverse action.”) (internal citation and quotation marks omitted).
In her complaint before this Court, Plaintiff alleges that Defendant put her on a final
warning because of her race. Plaintiff claims her allegation of race discrimination
is “confirmed” because she asked a co-worker “how she would feel if something
like this was happening to her children, who are biracial.” Dkt. 1. Plaintiff does not
allege any facts to show that race, sex, national origin or age were factors in any
of Defendant’s employment decisions against her. Therefore, Plaintiff’s race, sex,
national origin and age discrimination claims are dismissed.

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3.

FMLA Interference and Retaliation Claims

Plaintiff fails to state claims for FMLA interference and retaliation.7 To state
a claim for FMLA interference, Plaintiff must show: “(1) [S]he is an eligible
employee under the FMLA; (2) that [the employer] is an employer as defined in [the]
FMLA; (3) that [she] was entitled to leave under [the] FMLA; (4) that [she] gave
notice to [the employer] of [her] intention to leave; and (5) that [she] was denied
benefits to which she was entitled under [the] FMLA.” Wanamaker v. Westport Bd.
of Educ., 899 F. Supp. 193, 205 (D. Conn. 2012) (collecting cases). To state a claim
for FMLA retaliation, Plaintiff must show: “(1) [she] exercised rights protected
under the FMLA; (2) [she] was qualified for [her] position; (3) [she] suffered an
adverse employment action; and (4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory intent.” Id. at 206-07
(quoting Potenza v. City of New York, 365 F.3d 165, 167-68 (2d Cir. 2004)). Plaintiff
must also allege that the FMLA leave was a negative factor in the termination
decision. Id.
Plaintiff fails to allege the necessary elements for FMLA interference or
retaliation. With regards to her interference claim, Plaintiff fails to allege that she
was denied FMLA benefits to which she was entitled. In fact, Plaintiff alleges that
she “applied for and was granted FMLA.” Dkt. 1. With regards to her retaliation
claim, Plaintiff alleges that at a meeting in May 2015, Defendant yelled at her,
indicated that she was violating policy by calling out of work under approved FMLA

The FMLA does not require an exhaustion of administrative remedies prior to
commencing an action under its provisions. DiCesare v. Town of Stonington, No. 15-CV1703 (VAB), 2017 WL 1042056, at *6 (D. Conn. Mar. 17, 2017).
7

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leave time, and advised her that she was being disciplined for not having the proper
paperwork in place. Id. Plaintiff claims Defendant intentionally retaliated against
her because of her FMLA claims. In considering whether a comment is probative
of intent to discriminate, a court must consider: “(1) who made the remark, i.e. a
decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was
made in relation to the employment decision at issue; (3) the content of the remark,
i.e., whether a reasonable juror could view the remark as discriminatory; and (4)
the context in which the remark was made, i.e., whether it was related to the
decisionmaking process.” Wanamaker, 899 F. Supp. 2d at 208 (internal citation
and quotation marks omitted). Plaintiff does not allege who made these comments
to her, but it appears they were made approximately two months prior to her
termination. The Court does not find that the remark is discriminatory because it
relates to her failure to file the correct paperwork not her FMLA leave. Moreover,
Plaintiff does not allege that it was made in relation to Defendant’s decision to
terminate her. Therefore, Plaintiff’s claims for FMLA interference and retaliation are
dismissed.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. This

dismissal is without prejudice in deference to Plaintiff’s pro se status. The Court
grants Plaintiff liberty to file a motion to reopen together with an amended
complaint within twenty-one days of the date of this order, as to her claim for
disability retaliation only, alleging exhaustion and attaching a notice of right to sue
letter.

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IT IS SO ORDERED.
/s/
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: December 12, 2018.

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