Dunbar v. Tracylocke et al

Filing 140

ORDER granting in part and denying in part 86 Motion to Dismiss; granting 89 Motion for Judgment on the Pleadings without prejudice to the filing of an amended complaint, for the reasons stated in the attached Memorandum of Decision. Any amended complaint must be filed on or before March 22, 2021. Signed by Judge Kari A. Dooley on 2/18/2021. (Cahill, Leslie)

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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KAREN DUNBAR,

No. 3:19-cv-00956 (KAD)

Plaintiff,

v.

OMNICOM GROUP, INC., OMNICOM
MANAGEMENT SERVICES, DDB
WORLDWIDE COMMUNICATIONS,
TLP, INC. d/b/a TRACYLOCKE,
TERESA BRAMMER,

February 18, 2021

Defendants.
MEMORANDUM OF DECISION RE:
DEFENDANTS’ MOTION TO DISMISS (ECF NO. 86) AND
MOTION FOR ENTRY OF JUDGMENT ON THE PLEADINGS (ECF NO. 89)
Kari A. Dooley, United States District Judge:
This action arises out of the termination of Plaintiff Karen Dunbar’s (“Dunbar” or the
“Plaintiff”) employment on March 27, 2018. Pending before the Court is Defendants’ motion to
dismiss all claims against Defendants DDB Worldwide Communications (“DDB”), Omnicom
Management Services (“OMS”), and Teresa Brammer (“Brammer”), as well as Plaintiff’s libel
claim against all Defendants—DDB, OMS, TLP, Inc. d/b/a TracyLocke (“TracyLocke”),
Omnicom Group, Inc. (“Omnicom”) and Brammer. (ECF No. 86.) Also pending is Defendants’
motion for judgment on the pleadings with respect to Plaintiff’s claims against Omnicom brought
pursuant to the Equal Pay Act. (ECF No. 89.) Dunbar has filed oppositions to both motions and
the Defendants have filed reply briefs in support of their requested relief. For the reasons that
follow Defendants’ motion to dismiss is GRANTED in part and DENIED in part. The motion for
judgment on the pleadings is GRANTED without prejudice to the filing of an amended complaint.
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Allegations
The following allegations are taken from the Plaintiff’s First Amended Complaint (the
“FAC,” ECF No. 64) and are accepted as true for purposes of the instant motions. See, e.g., Hogan
v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013).
Dunbar is an accomplished advertising writer and creative director whose nearly 30-year
career has included working in the industry’s most prestigious advertising agencies and advising
many high-profile clients. (FAC ¶¶ 1, 30.) From May 2015 through March 27, 2018, Dunbar
served as an employee of Omnicom, DDB, and TracyLocke (which, together with OMS, she refers
to as the “Agency”) at TracyLocke’s Wilton, Connecticut office. (Id. ¶ 15.) Omnicom is a global
marketing and corporate communications company with approximately 78,000 employees
worldwide; it exercises extensive control over the operations and personnel decisions of OMS,
DDB, and TracyLocke, each of which is an Omnicom wholly-owned subsidiary. (Id. ¶¶ 16–19.)
OMS is located in Dallas, Texas and at all relevant times performed human resources (“HR”) and
information technology (“IT) functions for agencies that operate under the Omnicom umbrella.
(Id. ¶ 17.) DDB is headquartered and incorporated in New York and at all relevant times exercised
extensive control over TracyLocke’s personnel decisions and operations. (Id. ¶ 18.) TracyLocke
employs more than 650 professionals in thirteen offices, including its Connecticut office where
Dunbar worked. (Id. ¶ 19.) Brammer resides in Texas and at all relevant times served as
Omnicom’s Chief Human Resources Director. (Id. ¶ 20.)
Dunbar began her career with the Agency in May 2015 as a freelance copywriter and
creative director, which meant that she was not entitled to important benefits, including health and
retirement benefits, that accrued to male employees performing comparable work. (Id. ¶ 31.)
Despite working long hours and producing exemplary work, Dunbar’s requests for full-time

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employment and attendant benefits were denied until April 2016, when she was offered a position
as Associate Creative Director for TracyLocke’s Hewlett Packard (“HP”) client account. (Id. ¶¶
31–33.) Though overqualified for the position, Dunbar was encouraged to accept in order to
achieve employee status and a few months later was promoted to Creative Director of the HP team.
(Id. ¶ 33.)
Although it is TracyLocke’s second largest office in the United States, the Agency’s
Connecticut office lacks a Human Resources department or even a single HR representative. (Id.
¶ 43.) This absence has contributed to a “Mad Men” culture in which male supervisors and
employees perpetuate unchecked sexual harassment, discrimination, and abusive behavior toward
female subordinates. (Id. ¶ 44.)

The Agency’s reputation for gender inequity in an industry

already afflicted by gender discrimination is well-known and is reflected in, inter alia, comments
from TracyLocke CEO Hugh Boyle (“Boyle”) describing his creative team as “a Band of
Brothers,” a significant gender pay gap, disproportionate numbers of men in high-level positions,
public employee reviews recounting sexual harassment and discrimination, and the Agency’s
disregard for serious complaints of harassment and abuse. (Id. ¶¶ 46–50.)
Throughout her tenure with the Agency, Dunbar herself “was subjected to a severe and
pervasive hostile workplace in which she and other women were routinely demeaned, diminished
and subjected to degrading sexual harassment.” (Id. ¶ 53.) For example, when Dunbar joined the
HP team in April 2016, the Agency placed her in charge of a male employee who had been the
subject of prior complaints that the Agency had ignored, and whose intimidating and explosive
behavior led Dunbar to fear for her physical safety. (Id. ¶¶ 54–57.) The Agency required Dunbar
to monitor the male employee’s compliance with a “special ‘behavior contract’” created for him
despite Dunbar’s repeated complaints of the employee’s threats and abuse, and though he was

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eventually terminated, Dunbar continued to fear reprisal after his departure. (Id. ¶¶ 58–59.) In
August 2016, Global Managing Director Jim Sexton (“Sexton”) deliberately placed Dunbar next
to a powerful senior male client during a meeting in which the client openly flirted with Dunbar,
sat uncomfortably close to her, and passed her inappropriate notes. (Id. ¶ 61.) When confronted
by Dunbar, Sexton “admitted that he directed Dunbar to sit close to his important client ‘so he
would have someone pretty, young, and sexy beside him.’” (Id.) Dunbar reported this incident as
sexual harassment but her complaint was ignored, prompting Brian Hutter (“Hutter”), Dunbar’s
direct supervisor on the HP team (see id. ¶ 34) to blame Dunbar “for being a ‘difficult’ woman.”
(Id. ¶ 62.) In the fall of 2017 Sexton berated Dunbar and screamed at her over the phone following
a difficult HP client meeting (id. ¶ 63), and “Sexton twice touched Dunbar in an unwanted and
offensive sexual manner.” (Id. ¶ 64.) During a fall 2017 business trip to San Francisco, CEO
Boyle loudly and repeatedly used the word “cunt” during a meeting at which Dunbar was the only
female present, lamenting its underuse in the “PC culture.” (Id. ¶ 66.) Dunbar felt degraded by
the incident but feared termination if she were to report it. (Id. ¶¶ 66–67.) And although Hutter
privately applauded Dunbar’s work, he belittled and humiliated her in front of the HP team,
complaining of her “strong opinions,” characterizing her as a “nagging wife,” and in one incident
suggesting that she tape her mouth shut. (Id. ¶¶ 68–73.) Hutter and other supervisors also excluded
Dunbar from opportunities afforded to less experienced male employees, including by requiring
that Dunbar alone obtain special permission from Hutter and Sexton to travel to client meetings.
(Id. ¶ 74.)
For years the Agency’s culture has been permeated by an implicit understanding that
complaints of discrimination and sexual harassment will not be taken seriously, and it is widely
understood that Brammer is dedicated to protecting male executives. (Id. ¶¶ 75–76.) During her

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tenure with the Agency Dunbar took it upon herself to challenge this environment and to mentor
younger female colleagues. (Id. ¶ 77.) Through these interactions Dunbar learned that a male
employee whose reputation for workplace sexual misconduct was widely known had sexually
assaulted a female subordinate in the presence of another male employee in 2014. (Id. ¶¶ 78–79.)
The female employee reported the assault to Brammer, who failed to hold the male employee
accountable; he was instead promoted to one of the Agency’s highest executive management
positions. (Id. ¶¶ 78–79.) Based on her own experience and that of her female coworkers, Dunbar
complained to Hutter, reported sexual harassment and discrimination to Brammer as well as other
supervisors, and asked the Agency to remedy its inadequate sexual harassment and discrimination
training, but the Agency failed to address her complaints. (Id. ¶¶ 81–82.) The Agency also
neglected to interfere with numerous instances of sexual harassment and sexual misconduct
perpetuated by a male IT engineer against multiple TracyLocke employees on the grounds that the
IT engineer was employed by an outside company. (Id. ¶¶ 83–85.)
Despite these challenges Dunbar’s performance assessment for 2016-2017 yielded
“exceptional” ratings in numerous categories (id. ¶ 34) and she began pursuing a promotion to
Group Creative Director. (Id. ¶ 86.) Dunbar expressed her interest in this position to Executive
Creative Director Phil Camarota (“Camarota”), who was far less experienced than Dunbar and
largely ignored her interest and efforts to take on new business opportunities, instead funneling
these opportunities to men. (Id. ¶¶ 87–89.) Camarota eventually informed Dunbar that “rather
than promoting Dunbar, he was transferring a younger, less qualified, and less experienced male
Creative Director, Chris DeSalvo, to the HP team and diverting many of Dunbar’s projects and
responsibilities to him—effectively demoting Dunbar,” though Camarota referred to the move as
a “restructuring.” (Id. ¶¶ 90–91.) Dunbar was the last member of the HP team to learn of the

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restructuring, which she believed was a punitive measure undertaken as part of the Agency’s and
Brammer’s campaign to marginalize Dunbar for her efforts to pursue equal treatment and confront
workplace harassment and discrimination. (Id. ¶¶ 92–94.) On March 8, 2018, TracyLocke
prepared “TL Props to Her” cards in recognition of International Women’s Day, through which
employees could extend “props” to female employees via cards that were displayed on an office
wall. (Id. ¶ 96.) Despite recognizing Dunbar for “rockn’ out a ton of great work on a daily basis
and guiding the team to greatness” with a props card, on that same day Hutter exploded with anger
after Dunbar asked him to delineate her role in relationship to that of Chris DeSalvo. (Id. ¶ 98.)
During the meeting “Hutter verbally abused and physically intimidated” Dunbar, “declaring: ‘Now
you and I are going to have a confrontation.’” (Id.)
Approximately three weeks later, on March 27, 2018, the Agency terminated Dunbar’s
employment “in retaliation for making sexual harassment and discrimination complaints to her
supervisors and HR, for requesting and pursuing equal treatment and for her equality advocacy.”
(Id. ¶¶ 99–100.) Brammer, who had flown in from Texas, informed Dunbar in a meeting with
Camarota and Hutter present that Dunbar “was being terminated effective immediately and
directed her to gather her personal things and leave the building under escort, without speaking to
anyone.” (Id. ¶ 100.) Brammer cited Dunbar’s “disloyalty” in updating her professional portfolio
and exploring other employment opportunities, although Dunbar never worked on her portfolio
during business hours and Dunbar knew of other male employees who had directed female
subordinates to develop portfolios for them who were not subject to adverse employment actions.
(Id. ¶¶ 101–102.) Dunbar also had knowledge of other male employees who had openly sought
new employment but who were offered financial incentives to remain with the Agency instead of
facing termination. (Id. ¶ 102.)

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Following her departure Dunbar retained counsel, who invited Omnicom and TracyLocke
to participate in confidential pre-litigation negotiations to resolve Dunbar’s claims of employment
discrimination. (Id. ¶¶ 107–108.) Omnicom and TracyLocke declined to participate, and Dunbar
filed her claims against the two entities with the Connecticut Commission on Human Rights and
Opportunities (“CHRO”) and the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶
110.) Despite receiving notice of these filings through counsel, the Agency failed to respond to
the CHRO’s requests for information and documents during the investigative process. (Id. ¶¶ 111–
14.)
Dunbar was provided the 2018 copy of the Agency’s employee handbook (the
“Handbook”) after her termination, which states that it is applicable to employees of all Omnicom
subsidiaries and affiliates. (Id. ¶¶ 35, 37.) The Handbook prohibits sexual harassment of any
kind, which it defines as “unwelcome sexual advances, requests for sexual favors and/or other
verbal, visual or physical conduct of a sexual nature when . . . the conduct has the purpose or effect
of unreasonably interfering with an individual’s work performance or creating an intimidating,
hostile or offensive working environment.” (Id. ¶ 38.) The Handbook also emphasizes “the
Agency’s ‘legal duty to retain and preserve materials that might be requested in a pending or
anticipated legal proceeding, audit or investigation’” and contains protocols for preserving and
retaining Agency records, including emails, in the event of a litigation hold. (Id. ¶¶ 116–18.)
Dunbar notified Brammer and the Agency of her intent to contact legal counsel regarding
her retaliatory termination during the March 27, 2018 meeting. (Id. ¶ 120.) Despite awareness of
the Agency’s policies, both Brammer and the Agency violated their duties and obligations to
undertake appropriate steps to retain documents and prevent the spoliation of evidence in the face
of this notice. (Id. ¶ 119.) Instead, the Agency “knowingly and intentionally destroyed Plaintiff’s

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entire email account in a manner intended to ensure that information and evidence relating to the
Agency’s and Brammer’s misconduct and Dunbar’s claims would be irretrievable.” (Id. ¶ 121.)
The Agency also “wiped” Dunbar’s company laptop clean, thereby further rendering information
and evidence relating to Dunbar’s claims unrecoverable. (Id. ¶ 122.)
Dunbar’s claims were cited in a December 2019 New York Times article entitled “#MeToo
Clashes with ‘Bro Culture’ at Ad Agencies,” which states that “Teresa Brammer, the agency’s
chief human resources officer, said that Ms. Dunbar’s accusations were found by external
investigators to be without merit, adding that ‘there is no higher priority than creating a safe, fair
and equitable workplace for our associates.’” (Id. ¶ 124.) Dunbar asserts that this statement is
false and defamatory and was made with knowledge of its falsity and/or reckless disregard for its
truth. (Id.) Dunbar has suffered economic harm and emotional distress, as well as public shame
and ridicule, as a result of the injuries to her name and reputation in the advertising industry
stemming from this article. (Id. ¶ 127.)
Based on these allegations, Dunbar brings claims against all of the Agency Defendants for:
sexual harassment due to a hostile work environment in violation of Title VII of the Civil Rights
Act (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Connecticut Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. §§ 46a-60 et seq. (Counts One and Two); pay discrimination on the
basis of sex in violation of Title VII, the Equal Pay Act (“EPA”), 29 U.S.C. §§ 206 et seq., and the
CFEPA (Counts Three, Four, and Five); retaliation in violation of Title VII, the EPA, and the
CFEPA (Counts Six, Seven, and Eight); wrongful termination in violation of Title VII, the EPA,
and the CFEPA (Counts Nine, Ten, and Eleven); and breach of contract (Count Twelve). She also
asserts a libel per se claim against Brammer and the Agency Defendants (Count Thirteen).
Defendants move pursuant to Fed. R. Civ. P. 12(b)(6) for dismissal of all Plaintiff’s claims against

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OMS, DDB and Brammer, and for dismissal of Plaintiff’s libel claim in its entirety. Defendants
also move pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings on each of Plaintiff’s
claims asserted under the EPA against Omnicom.
Standard of Review
On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept the
complaint’s factual allegations as true and must draw inferences in the plaintiff’s favor. Littlejohn
v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). A motion filed pursuant to “Rule 12(b)(6)
must be decided on ‘facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and matters of which judicial notice may
be taken.’” Lunardini v. Mass. Mut. Life Ins. Co., 696 F. Supp. 2d 149, 155 (D. Conn. 2010)
(quoting Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999))
(brackets omitted). The “complaint must ‘state a claim to relief that is plausible on its face,’”
setting forth “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d
236, 239 (2d Cir. 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Accordingly, ‘threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.’” Nielsen v. Rabin,
746 F.3d 58, 62 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 678) (brackets omitted).
“A party may move for judgment on the pleadings ‘if, from the pleadings, the moving
party is entitled to judgment as a matter of law.’” Rojas v. Berryhill, 368 F. Supp. 3d 668, 669
(S.D.N.Y. 2019) (quoting Burns v. Int’l Sec. Serv., Inc. v. Int’l Union, United Plant Guard
Workers, 47 F.3d 14, 16 (2d Cir. 1995) (per curiam)). “The standard for addressing a Rule 12(c)
motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for

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failure to state a claim.” Hogan, 738 F.3d at 514–15 (quoting Cleveland v. Caplaw Enters., 448
F.3d 518, 521 (2d Cir. 2006)).
Discussion
Title VII and CFEPA Claims Against DDB and OMS
Defendants first argue that because Plaintiff failed to name DDB or OMS in her charges
filed with the EEOC and the CHRO, she failed to exhaust her administrative remedies and her
Title VII and CFEPA claims against these two Defendants must therefore be dismissed. In the
alternative Defendants assert that Plaintiff has failed to state a claim for relief against these entities
under Title VII or the CFEPA because Plaintiff failed to plead an employer-employee relationship
between herself and either DDB or OMS, and because certain of Plaintiff’s allegations, even if
such a relationship were adequately pleaded, fall outside the statute of limitations. Because the
Court agrees with Defendants that Plaintiff has failed to exhaust her administrative remedies, the
Court need not decide whether Plaintiff has adequately pled that the Agency Defendants are
sufficiently integrated so as to constitute a single employer under the relevant statutory schemes.1

1

Necessary or not, the Court observes that Dunbar’s argument that the issue of “[w]hether two [or more] related
entities are sufficiently integrated to be treated as a single employer is generally a question of fact not suitable to
resolution on a motion to dismiss,” Brown v. Daikin Am. Inc., 756 F.3d 219, 226 (2d Cir. 2014), is compelling. This
inquiry requires the Court to consider “evidence of (1) interrelation of operations, (2) centralized control of labor
relations, (3) common management, and (4) common ownership or financial control.” Id. (quoting Cook v.
Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995)). While Courts have recognized that a plaintiff must
do more than recite “mere boilerplate allegations” in order to put defendants on adequate notice that she intends to
assert a single employer theory of liability, Li v. Ichiro Sushi, Inc., No. 14-CV-10242 (AJN), 2016 WL 1271068, at
*6 (S.D.N.Y. Mar. 29, 2016) (quoting Bravo v. Established Burger One, LLC, No. 12-CV-9044 (CM), 2013 WL
5549495, at *7 (S.D.N.Y. Oct. 8, 2013)), Dunbar’s intention in this regard is hardly a mystery. And although Dunbar’s
allegations that: (1) Omnicom exercises extensive control over TracyLocke’s, DDB’s, and OMS’s operations and
personnel decisions; (2) OMS in turn exercises extensive control over TracyLocke’s and DDB’s HR and IT functions;
and (3) DDB exercises extensive control over TracyLocke’s personnel decisions and operations (FAC ¶¶ 16–18)
provide only minimal factual detail to support the contention that these four entities should be considered a single
employer, the Court does not find these allegations so deficient as to warrant dismissal at this stage. See, e.g., Addison
v. Reitman Blacktop, Inc., 283 F.R.D. 74, 84 (E.D.N.Y. 2011) (holding that “Plaintiffs have put the Defendants on
notice of the theory of employer liability by alleging that, upon information and belief, ‘at all times material to this
action, the corporate Defendants formed a ‘single integrated enterprise’ as they shared common management,
finances, and/or other resources’” and thus motion for leave to amend was not futile).

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“Before bringing a Title VII suit in federal court, an individual must first present ‘the claims
forming the basis of such a suit . . . in a complaint to the EEOC or the equivalent state agency.’”
Littlejohn, 795 F.3d at 322 (quoting Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006)
(per curiam)). “A prerequisite to commencing a Title VII action against a defendant is the filing
with the EEOC or authorized state agency of a complaint naming the defendant.” Johnson v.
Palma, 931 F.2d 203, 209 (2d Cir. 1991). However, the obligation to exhaust administrative
remedies with the EEOC is a mandatory claims processing rule and not a jurisdictional prerequisite
to suit. See Fort Bend County, Texas v. Davis, 139 S. Ct. 1843, 1850–51 (2019). Nonetheless,
Title VII claims can be subject to dismissal for failing to exhaust administrative remedies where a
plaintiff failed to name a later-sued defendant in the EEOC complaint. See, e.g., Vital v. Interfaith
Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999).
Likewise, “[i]t is undisputed that CFEPA claims must initially go through the CHRO, and
may not be sued upon until the CHRO grants a release of jurisdiction.” Fried v. LVI Servs., Inc.,
557 Fed. App’x 61, 63 (2d Cir. 2014) (summary order). With respect to CFEPA claims, unlike
Title VII claims, a plaintiff’s “failure to . . . bring his complaint to the CHRO forecloses his access
to judicial relief, because it deprive[s] the trial court of jurisdiction to hear his complaint.” Sullivan
v. Bd. of Police Comm’rs of City of Waterbury, 196 Conn. 208, 217–18, 491 A.2d 1096 (1985).
Thus, “[w]here a plaintiff has obtained a release for his or her discrimination claims from the
CHRO but failed to include a particular defendant in the CHRO complaint, courts of this District
have consistently found a lack of subject matter jurisdiction over the [CFEPA] claims as to the

In arguing that Dunbar has not sufficiently alleged that Omnicom, DDB, or OMS were her employer, Defendants also
cite the “immediate control” or “economic reality” tests that are typically applied to determine joint employer liability
under the Fair Labor Standards Act and other statutes. See, e.g., Serv. Employees Int’l Union, Local 32BJ v. N.L.R.B.,
647 F.3d 435, 442–43 (2d Cir. 2011); Marsteller v. Butterfield 8 Stamford LLC, No. 3:14-CV-1371 (AWT), 2017 WL
4286364, at *5 (D. Conn. Sept. 27, 2017). However, because it is apparent from Dunbar’s complaint and her
opposition to the motion to dismiss that she is alleging a single employer or enterprise theory of liability, she need not
also allege facts supporting alternative joint employer theories of liability.

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unnamed defendant[s].” Anderson v. Derby Bd. of Educ., 718 F. Supp. 2d 258, 273 (D. Conn.
2010) (citing cases). 2
At issue here, is an exception recognized by the Second Circuit “to the general rule that a
defendant must be named in the EEOC complaint,” which “permits a Title VII action to proceed
against an unnamed party where there is a clear identity of interest between the unnamed defendant
and the party named in the administrative charge.” Johnson, 931 F.2d at 209. The Connecticut
Appellate Court has adopted this exception with respect to CFEPA claims as well. See Malasky
v. Metals Product Corp, 44 Conn. App. 446, 453–56, 689 A.2d 1145 (App. Ct. 1997). A four-part
test is used “to determine whether an ‘identity of interest’ exists,” which asks:
1) whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether,
under the circumstances, the interests of a named party are so similar as the unnamed
party’s that for the purpose of obtaining voluntary conciliation and compliance it would be
unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence
from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed
party; [and] 4) whether the unnamed party has in some way represented to the complainant
that its relationship with the complainant is to be through the named party.
Johnson, 931 F.2d at 209–10; Malasky, 44 Conn. App. at 453–454 (same). 3 “[I]t is the plaintiff
who has the burden of proving that the identity of interest exception applies.” Lewis v. Livingston

2

The Court must therefore construe Defendants’ motion to dismiss Dunbar’s CFEPA claims against DDB and OMS
as a challenge to the Court’s subject matter jurisdiction and will apply the standard applicable to a motion filed
pursuant to Fed. R. Civ. P. 12(b)(1) with respect to this subset of claims. “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.” Mercer v. Schriro, 337 F. Supp. 3d 109, 122 (D. Conn. 2018)
(quoting Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). “[T]he party
asserting subject matter jurisdiction ‘bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.’” P. v. Greenwich Bd. of Educ., 929 F. Supp. 2d 40, 45–46 (D. Conn. 2013) (quoting Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)). However where, as here, “the Rule 12(b)(1) motion
is facial, i.e., based solely on the allegations of the complaint or the complaint and exhibits attached to it (collectively
the ‘Pleading’), the plaintiff has no evidentiary burden.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir.
2016).
3

For ease of reference, this identity of interest test shall be referred to as the Johnson test.

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Cty. Ctr. for Nursing & Rehab., 30 F. Supp. 3d 196, 205 (W.D.N.Y. 2014) (quoting Senecal v.
B.G. Lenders Serv. LLC, 976 F. Supp. 2d 199, 214 (N.D.N.Y. 2013)).
In crafting this exception, the Second Circuit observed that because EEOC “charges
generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional and
pleading requirements,” interpretation of the statute’s procedural requirements warrants “a flexible
stance.” Johnson, 931 F.2d at 209 (internal quotation marks omitted). Citing this language in
Johnson, “the majority of courts seem to favor a finding that the ‘identity of interest’ doctrine
applies only to a pro se filer,” although the Second Circuit has not reached the issue. Lafferty v.
Owens, Schine & Nicola, P.C., No. 3:09-CV-1045 (MRK), 2012 WL 162332, at *9 (D. Conn. Jan.
18, 2012); see also Margarite Consolmagno v. Hosp. of St. Raphael Sch. of Nurse Anesthesia, No.
3:11-CV-109 (DJS), 2016 WL 11575100, at *2 (D. Conn. Apr. 21, 2016) (“Since the time of the
Second Circuit’s decision in Johnson, some district courts in this Circuit have concluded that pro
se status at the administrative stage is a necessary prerequisite to the application of the identity of
interest exception, while others have applied the exception in cases where a complainant was
represented by counsel”). And while the Johnson test has likewise been applied to claims brought
under the CFEPA, “Courts in this district have consistently held that the ‘identity of interests’
exception to the requirement that defendants be named in the preceding CHRO complaint only
applies when the plaintiff was not represented by counsel before the CHRO.’” Robinson v. City
of New Haven, 578 F. Supp. 2d 385, 390 (D. Conn. 2008); accord Anderson, 718 F. Supp. 2d at
275 (holding that “the exception only applies to pro se filings with the relevant administrative
agencies”). Indeed, the Malasky case, which is the only appellate authority in the state courts to
discuss the identity of interest exception, involved a plaintiff that was self-represented at the time

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she filed the CHRO complaint, a factor specifically cited by the appellate court. Malasky, 44
Conn. App. at 455–56.
Here, Dunbar was represented by counsel at the time that she filed her EEOC and CHRO
complaints but nonetheless asks this Court to apply the identity of interest exception to permit her
claims to proceed against DDB and OMS under both Title VII and the CFEPA. She cites the
following allegations in arguing that the Johnson test tips in her favor: (1) DDB and OMS had
actual notice of the EEOC and CHRO charges filed against Omnicom and TracyLocke; (2)
Omnicom exercises substantial control over DDB’s, OMS’s, and TracyLocke’s personnel
decisions and operations; (3) DDB was Dunbar’s employer as defined by applicable federal and
state law and exercised extensive control over TracyLocke’s personnel decisions and operations;
and (4) OMS exercised extensive control over the HR and IT functions of both DDB and
TracyLocke. (Pl.’s Opp’n to Mot. to Dismiss at 5, ECF No. 111 (citing FAC ¶¶ 112, 16–18).)
Dunbar also relies on Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598 (S.D.N.Y.
2016), aff’d in part, rev’d in part, 852 F.3d 195 (2d Cir. 2017), which involved an employment
discrimination suit brought by a DDB employee against DDB and Omnicom even though the latter
was not named in the plaintiff’s administrative complaints. The district court dismissed the
complaint on other grounds but with respect to the exhaustion issue found “that at this stage of the
litigation, Plaintiff has pleaded sufficient facts to support his contention that naming DDB in his
administrative complaints relieved him of his obligation to name Omnicom separately,” applying
the Johnson test. Id. at 610 n.4. Specifically, the court found that while the first Johnson factor
weighed against the Plaintiff, the others favored him where he “allege[d] that counsel for Omnicom
participated in a ‘conciliatory mediation process’ with Plaintiff and has received notice of all
charges filed . . . that Omnicom ‘exercises extensive control’ over DDB’s ‘operations and

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personnel decisions’ . . . and that rules regarding employee conduct were directly established by
Omnicom.” Id.
In response, DDB and OMS argue that the fact that Plaintiff was represented by counsel at
the administrative stage categorically precludes her ability to invoke the identity of interest
exception and that even if the exception were available, the Johnson factors militate against its
application. Defendants also distinguish Christiansen, which concluded that the interests of the
named subsidiary (DDB) were identical to that of its unnamed parent company (Omnicom), in a
“vertical” wholly owned parent-subsidiary relationship. Here, by contrast, Dunbar seeks to have
the Court excuse her failure to name DDB and OMS as affiliates of TracyLocke, which reflect a
“horizontal” relationship to the named party, and which are subsidiaries of named party Omnicom.
According to Defendants, this difference defeats a finding of unity of interest at the second step of
the Johnson test. Defendants also point out that Omnicom participated in mediation during the
administrative stage in Christiansen despite the fact that it was not named in the plaintiff’s
administrative complaints. Here, DDB and OMS are not alleged to have been involved in the
administrative proceedings at all.
The Court agrees with the Defendants that the identity of interest exception is not
applicable here. First, with respect to the CFEPA, Dunbar has not cited any authoritative case
indicating that the failure to name a defendant in a CHRO complaint may be excused where the
plaintiff was counseled before the CHRO. 4 To the contrary, and as noted above, the cases largely
indicate that whether or not the claimant was counseled is typically a threshold inquiry before the

4

Dunbar cites Williams v. Quebecor World Infiniti Graphics, Inc., No. 3:03-CV-2200 (PCD), 2007 WL 926901, at
*3 (D. Conn. Mar. 23, 2007), in which the court affirmed its earlier denial without prejudice of the defendants’ motion
to dismiss in light of certain factual issues that rendered the identity of interest question more appropriate for resolution
after trial. While the court recognized the exception despite the fact that “Plaintiff was represented by counsel in the
administrative proceedings,” in doing so the court relied upon cases involving Title VII and other federal statutes and
did not address the question presented here of whether a more restrictive rule applies under Connecticut law. See id.

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test is applied. Anderson, 718 F. Supp. 2d at 275; Robinson, 578 F. Supp. 2d at 390; see also, e.g.,
Chassie v. Sprigs & Twigs, Inc., No. KNLCV146020965S, 2014 WL 7525499, at *3 (Conn. Super.
Ct. Nov. 21, 2014) (“Courts have consistently held that this identity of interests exception to the
requirement that defendants be named in the preceding CHRO complaint only applies when the
plaintiff was not represented by counsel before the CHRO”) (quotation marks and citation
omitted). And as noted previously, the only appellate authority recognizing the exception involved
a self-represented claimant at the time the CHRO complaint was filed. Malasky, 44 Conn. App.
at 455–56. Finally, given the Connecticut Supreme Court’s holding that the failure to exhaust
administrative remedies before the CHRO deprives the court of subject matter jurisdiction, see
Sullivan, 196 Conn. at 217–18, this Court is especially reluctant to interpret the exception in a
manner that would enlarge this Court’s subject matter jurisdiction beyond that specifically
countenanced by controlling state law.
As for Dunbar’s Title VII claims, even if the Court were to “consider[] whether [Dunbar]
had counsel before the EEOC” as “a non-dispositive factor in determining whether to apply the
‘identity of interests’ exception,” Consolmagno v. Hosp. of St. Raphael, No. 3:11-CV-109 (PCD),
2011 WL 4804774, at *7 n.14 (D. Conn. Oct. 11, 2011), as opposed to a threshold requirement,
the Court finds that the Johnson factors weigh in favor of DDB and OMS. See also Senecal, 976
F. Supp. 2d at 216 (concluding “that a plaintiff’s legal representation at the time of his or her EEOC
filing is informative when considering the first and fourth Johnson factor” but does not pose a
categorical bar to invoking the exception). Regarding the first factor, Dunbar has offered no
response to Defendants’ contention that she could easily have ascertained DDB’s and OMS’s
alleged role in the employment conditions and actions of which she complains from Omnicom’s
website, SEC filings, or the Employee Handbook from which the FAC quotes—a supposition

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which is all the more reasonable given Dunbar’s early retention of counsel. (Defs.’ Mem. in
Support of Mot. to Dismiss at 20, ECF No. 91.) Defendants also point to the fact that Dunbar
identified herself as a former DDB employee in the charge documents she filed with the EEOC
and CHRO, thus establishing her knowledge of DDB at that time. (Carannante Decl. Exs. A, B ¶
8, ECF Nos. 87-1, 87-2. 5)
At the second step of the inquiry, the Court agrees with the Defendants that the FAC alleges
largely conclusory allegations on the issue of similarity of interest between DDB, OMS, and the
named Defendants. Merely alleging that “OMS exercised extensive control over DDB’s and
[TracyLocke’s] human resources . . . and information technology . . . functions” and that “DDB
exercised extensive control over [TracyLocke’s] operations and personnel decisions” (FAC ¶¶ 17–
18) does not, without more, plausibly suggest that the interests of TracyLocke and Omnicom are
so similar to that of DDB and OMS “that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include [OMS and DDB] in the” administrative
proceedings. Johnson, 931 F.2d at 209–10; cf. Kearney v. Kessler Family LLC, No. 11-CV-06016,
2011 WL 2693892, at *7 (W.D.N.Y. July 11, 2011) (“Courts have regularly found
the identity of interest exception inapplicable in the franchisor-franchisee context when a plaintiff
fails to identify the franchisor in the EEOC charge, and later sets forth conclusory allegations
regarding the franchisor’s ‘right to control’ the franchisee”). The FAC therefore does not set forth
sufficient facts from which the Court can conclude that TracyLocke was so interconnected with
its horizontal affiliates, DDB and OMS, as to compel a finding that the second Johnson factor
favors Plaintiff.

5

The documents that the Plaintiff filed in connection with the administrative proceedings, of which she had knowledge
and which are referenced in the complaint (FAC ¶ 110), are subject to judicial notice on a motion to dismiss pursuant
to Rule 12(b)(6). See, e.g., Falcon v. City Univ. of New York, 263 F. Supp. 3d 416, 423–24 (E.D.N.Y. 2017).

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Third, Defendants argue that DDB and OMS have suffered prejudice by virtue of their lost
opportunity to resolve this dispute outside of litigation, including during the administrative
proceedings. Dunbar responds by citing Omnicom’s and TracyLocke’s admission that “Plaintiff’s
counsel provided notice to Defendants concerning her filing of the complaints with the CHRO and
the EEOC by way of letter dated July 30, 2018.” (Omnicom Answer to FAC ¶ 108, ECF No. 84;
see also Tracylocke Answer to FAC ¶ 108, ECF No. 85.) It is unclear whether this statement was
intended to extend to DDB and OMS when neither entity has yet filed an answer to the FAC and
thus neither Defendant appears to have made such a judicial admission. See Hoodho v. Holder,
558 F.3d 184, 191 (2d Cir. 2009) (“Facts admitted by a party are judicial admissions that bind that
party throughout the litigation”) (quotation marks, alterations, and citation omitted). Defendants
also refute such a proposition in their reply brief. (Defs.’ Reply at 3 n.3, ECF No. 119.) However
even assuming arguendo that OMS and DDB had notice of the Plaintiff’s CHRO and EEOC
charges before this lawsuit was filed, a showing of actual prejudice at step three of the Johnson
test is not necessary to find the Johnson exception otherwise inapt. See Ayala v. U.S. Postal Serv.,
No. 15-CV-4919 (VSB), 2017 WL 1234028, at *5 n.6 (S.D.N.Y. Mar. 31, 2017), aff’d sub
nom. Ayala v. United States Postal Serv., 727 F. App’x 15 (2d Cir. 2018) (dismissing claims for
failure to exhaust where Johnson test was not met, even though the unnamed defendant did not
argue that it suffered actual prejudice).
Fourth, Defendants emphasize the complete absence of non-conclusory allegations from
which it can be inferred that either DDB or OMS represented to Dunbar that her relationship with
DDB or OMS should be undertaken via Omnicom or TracyLocke. And while Dunbar argues that
“the FAC includes substantive allegations concerning DDB’s and OMS’s involvement in the
adverse employment actions Plaintiff experienced” (Pl’s. Opp’n to Mot. to Dismiss at 6), none of

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these allegations identify DDB’s or OMS’s role or actions specifically; they instead sweep these
entities in with the FAC’s collective references to “the Agency” without distinction. Moreover, in
addition to the four Johnson factors, some courts have considered whether the unnamed “defendant
is named in the body of the charges of having played a role in the discrimination,” in determining
whether to apply the exception. Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 311
(S.D.N.Y. 2014) (quotation marks and citation omitted); see also, e.g., Joseph v. United Techs.
Corp., No. 14-CV-424 (AWT), 2015 WL 851895, at *4 (D. Conn. Feb. 26, 2015). Neither DDB
nor OMS are so much as mentioned in Dunbar’s charges as allegedly contributing to the alleged
discrimination, which, to the contrary, she attributed only to TracyLocke and Omnicom.
In sum, given that Dunbar was represented by experienced counsel during the
administrative proceedings before initiating this action and that the Johnson factors weigh, on
balance, in Defendants’ favor, the Court declines to apply the exception to the general rule that
Dunbar’s failure to name OMS and DDB in her administrative complaints before the EEOC
precludes her from seeking Title VII relief against these entities before this Court.
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss as to
Dunbar’s Title VII and CFEPA claims against OMS and DDB. 6
EPA Pay Disparity Claims Against DDB, OMS, and Omnicom
Defendants next argue that Dunbar has failed to state a pay disparity claim under the EPA
with respect to DDB and OMS, as she has not alleged that either entity was responsible for her
compensation or that either paid different wages to male employees. Defendants further assert in

6
Defendants also argue that Dunbar’s discrimination and retaliation claims under Title VII and the CFEPA are timebarred to the extent that they are premised on Dunbar being hired as a freelancer and not a full-time employee in 2015,
and on her hiring as an Associate Creative Director rather than a Creative Director in 2016. (Defs.’ Mem. in Support
of Mot. to Dismiss at 23–24.) Because Defendants only sought dismissal of Plaintiff’s Title VII and CFEPA claims
against OMS and DDB, and because the Court has concluded that it must dismiss the claims against these entities on
exhaustion grounds, the Court does not further address these arguments at this time.

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the motion for judgment on the pleadings that Dunbar has failed to plead sufficient facts to support
a pay disparity claim under the EPA against Omnicom, including because she has failed to allege
facts from which Omnicom can be considered her employer under the statute. The Court agrees
with Defendants that Dunbar has failed to state a plausible pay discrimination claim against any
of these three Defendants.
“The Equal Pay Act prohibits an employer from ‘paying wages to employees in such
establishment at a rate less than the rate at which he pays wages to employees of the opposite sex
in such establishment for equal work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar working conditions.’” Barrett v. Forest
Labs., Inc., 39 F. Supp. 3d 407, 451 (S.D.N.Y. 2014) (quoting 29 U.S.C. § 206(d)(1)). To prevail
on an EPA pay discrimination claim, a plaintiff must ultimately “demonstrate that ‘1) the employer
pays different wages to employees of the opposite sex; (2) the employees perform equal work on
jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar
working conditions.’” E.E.O.C. v. Port Auth. of New York & New Jersey, 768 F.3d 247, 254–55
(2d Cir. 2014) (quoting Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999)). “At the pleading
stage, then, a plausible EPA claim must include ‘sufficient factual matter, accepted as true’ to
permit ‘the reasonable inference’ that the relevant employees’ job content was ‘substantially
equal.’” Id. at 256 (quoting Iqbal, 556 U.S. at 678); see also Fairchild v. Quinnipiac Univ., 16 F.
Supp. 3d 89, 96 (D. Conn. 2014) (“Even at the motion to dismiss stage, vague, conclusory, and
speculative allegations will not save an Equal Pay Act claim.”) (quoting Bass v. World Wrestling
Federation Enter., Inc., 129 F. Supp. 2d 491, 503 (E.D.N.Y. 2001)). “The plaintiff must make
specific allegations ‘about the actual content of the work done’ and cannot res[t] on ‘broad
generalizations drawn from job titles and divisions.’” Verdone v. Am. Greenfuels, LLC, No. 3:16-

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CV-01271 (VAB), 2017 WL 3668596, at *5 (D. Conn. Aug. 24, 2017) (quoting Port Auth. of New
York & New Jersey, 768 F.3d at 256).
Dunbar responds to Defendants’ challenge to her claims against OMS and DDB by
asserting that because the FAC pleads that “all Agency Defendants operate as a single employer
and both DDB and OMS exercise excessive control over TracyLocke’s human resources and
personnel decisions,” this Court can consider DDB and OMS Dunbar’s employer for purposes of
her EPA pay discrimination claim. 7 (Pl.’s Opp’n to Mot. to Dismiss at 6.) Dunbar fails to address
adequately however the paucity of allegations in support of her EPA claims. And because the
FAC pleads only conclusory allegations in support of an EPA pay discrimination claim and does
not include any facts suggesting that a male Creative Director at any of the Agency’s affiliates was
paid more than Dunbar for substantially equal work, the Court agrees with the Defendants that
these claims must be dismissed not only as to DDB and OMS but also as to Omnicom, as sought
in Defendants’ motion for judgment on the pleadings.
Dunbar’s only relevant allegations concerning pay discrimination appear to stem from her
contention that while working “[a]s a freelancer, Dunbar was not entitled to receive valuable
benefits (including health, dental, and vision insurance coverage, participation in the Agency’s
retirement plan, and related employer contributions) male employees doing comparable work
received,” and that “[a]lthough she had more writing and creative leadership experience than most,
if not all, members of her team, the Agency repeatedly denied her requests for the full-time
employment status and attendant benefits every male member of her team received.” (FAC ¶ 31.)

7

The single employer doctrine that Dunbar relies upon throughout her briefing has also been recognized under the
Fair Labor Standards Act (“FLSA”), of which the EPA is a part. See Benzinger v. Lukoil Pan Americas, LLC, 447 F.
Supp. 3d 99, 133 (S.D.N.Y. 2020) (explaining that “[t]he single employer rule was developed by the National Labor
Relations Board in the collective bargaining context, and has since been adopted by courts and extended to various
employment law contexts,” including the FLSA); e.g., Belfi, 191 F.3d at 134 (noting that the EPA is part of the FLSA).
Largely for the reasons articulated in footnote two, supra, the Court rejects the Defendants’ arguments that the EPA
claims should be dismissed for failure to allege adequately an employer-employee relationship with DDB or OMS.

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Even assuming arguendo that these allegations are not time-barred as Defendants contend, they
fail to state a plausible EPA discrimination claim. In enacting the EPA, “Congress rejected
statutory language encompassing ‘comparable work’ to instead mandate equal pay for ‘equal work
on jobs the performance of which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.’” Port Auth. of New York & New Jersey, 768 F.3d at
254 (quoting 29 U.S.C. § 206(d)(1)). Thus, Dunbar’s invocation of “comparable work” and vague
allusions to other male team members fails to plead facts consistent with the “demanding” standard
under which the jobs to be compared must be found “substantially equal.” Id. at 255 (quotation
marks and citation omitted). Courts regularly dismiss EPA claims where, as here, particularized
allegations of equal work are lacking. See, e.g., Hernandez v. Premium Merch. Funding One,
LLC, No. 19-CV-1727, 2020 WL 3962108, at *15 (S.D.N.Y. July 13, 2020) (dismissing EPA claim
where plaintiff “does not allege that her male colleagues performed equal work on jobs requiring
equal skill, effort, and responsibility, or that these jobs were performed under similar working
conditions”); Adams v. Northstar Location Servs., LLC, No. 09-CV-1063, 2010 WL 3911415, at
*6 (W.D.N.Y. Oct. 5, 2010) (dismissing EPA claim where “Plaintiff does not describe her job
responsibilities in comparison to the job responsibilities of the male recruiter”). 8

8

In her opposition to the Defendants’ motion for judgment on the pleadings (ECF No. 112) Dunbar cites Chepak v.
Metro. Hosp., 555 F. App’x 74, 76 (2d Cir. 2014) (summary order), where the Second Circuit held that a plaintiff’s
assertions “that she was given a different title, but required to do the same job for less pay, as her male predecessors,”
were “sufficient to survive a motion to dismiss” in the absence of more specific allegations. That conclusion, however,
was predicated on the plaintiff’s “pro se status.” See id. Here, moreover, while Dunbar recites the “equal work”
standard in boilerplate fashion (FAC ¶ 158), she does not otherwise allege that she performed the “same” or “equal”
work to a male employee of OMS, DDB, or Omnicom; instead she refers only vaguely to “comparable work.” (FAC
¶ 31.) Dunbar also argues that her allegations are sufficient given that she has not had the benefit of discovery. Cf.
Port Auth. of New York and New Jersey, 768 F.3d at 258 (observing that “the EEOC’s failure to include
[nonconclusory] factual allegations followed a three-year investigation into the Port Authority’s pay practices—an
investigation conducted with the Port Authority’s cooperation—is of some note.”). However even at this early stage
Dunbar’s allegations must still “suggest ‘more than a sheer possibility’ that” DDB, OMS, or Omnicom “violated the
EPA,” id. at 258–59, and the Court finds that the FAC’s barebone allegations fail to transcend that mere possibility.

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Nor does Dunbar identify a male comparator who received a higher salary. See Rivera v.
Children’s & Women’s Physicians of Westchester, LLP, No. 16-CIV-714 (PGG) (DCF), 2017 WL
1065490, at *11 (S.D.N.Y. Mar. 18, 2017) (dismissing EPA claim as “too vague and conclusory”
where pro se plaintiff alleged, inter alia, that “she discovered that [the defendant] paid other less
qualified, junior medical assistants an hourly rate greater than that which she was paid,” as “[t]he
Complaint does not identify any male employee who performed substantially similar work to
Plaintiff, and who was compensated at a higher hourly rate”) (quotation marks and alterations
omitted); Suzuki v. State Univ. of New York Coll. at Old Westbury, No. 08-CV-4569 (TCP), 2013
WL 2898135, at *4 (E.D.N.Y. June 13, 2013) (dismissing EPA claim where, inter alia, “plaintiff
does not identify any male faculty members in her department during the relevant time with similar
experience who earned more for substantially similar work”).
Instead, Dunbar pleads in general terms that in 2018, Omnicom “reported a gender pay gap
of 30.2%, one of the most egregious among large advertising companies.” (FAC ¶ 48.) Even
accepting this statistic as true, such general allegations of company-wide pay disparity, standing
alone, are insufficient to sustain a plausible inference that Dunbar herself was the victim of unequal
pay for equal work. See Wang v. Gov’t Employees Ins. Co., No. 15-CV-1773 (JS) (ARL), 2016
WL 11469653, at *7 (E.D.N.Y. Mar. 31, 2016) (finding that “Plaintiff has failed to plausibly allege
disparities in pay based on sex” where “Plaintiff broadly states that ‘GEICO has engaged in a
widespread, deep-rooted racially discriminatory employment practice of paying [her] and other
minority female employees less than it pays Caucasian and male employees’”). 9

9

Dunbar also relies upon her allegation that Camarota “effectively demoted” Dunbar by diverting many of Dunbar’s
responsibilities and projects to Chris DeSalvo, a younger, less experienced, and less qualified male Creative Director.
(Pl.’s Opp’n to Mot. to Dismiss at 7.) Aside from the fact that Dunbar does not describe DeSalvo’s lesser qualifications
nor identify the nature of the work that he performed relative to Dunbar, nowhere does Dunbar allege that DeSalvo
was in fact paid more for equal work.

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Because Dunbar has failed to allege sufficient facts to sustain the inference that the job
content of a male employee of OMS, DDB, or Omnicom was substantially equal to that of Dunbar
and that a male employee of any of these entities was accordingly paid more than Dunbar for equal
work, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s EPA pay discrimination
claims against OMS and DDB, and GRANTS Defendants’ motion for judgment on the pleadings
with respect to Plaintiff’s EPA discrimination claim against Omnicom. Although Defendants have
not sought any relief with respect to Plaintiff’s EPA pay discrimination claim against TracyLocke,
the Court dismisses this claim for the same reason. See, e.g., First Capital Asset Mgmt., Inc. v.
Brickellbush, Inc., 219 F. Supp. 2d 576, 580 (S.D.N.Y. 2002), aff’d sub nom. First Capital Asset
Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159 (2d Cir. 2004) (“[W]hile dismissing a complaint as
to a non-moving defendant is not an ordinary practice, a district court may dismiss claims sua
sponte for failure to state a claim, at least so long as the plaintiff had notice and an opportunity to
be heard on the issue”) (footnote omitted). Dismissal of the Plaintiff’s EPA claims as to all of the
Agency Defendants is without prejudice to the filing of an amended complaint which addresses
the deficiencies identified herein.
EPA Retaliation Claims
“The anti-retaliation provision of the FLSA, of which the EPA is a part, states in relevant
part that it shall be unlawful ‘to discharge or in any other manner discriminate against any
employee because such employee has filed any complaint or instituted or caused to be instituted
any proceeding under or related to this chapter.’” Kassman v. KPMG LLP, 925 F. Supp. 2d 453,
472 (S.D.N.Y. 2013) (quoting 29 U.S.C. § 215(a)(3)). “[A]n employee may premise a section
215(a)(3) retaliation action on an oral complaint made to an employer, so long as . . . the complaint
is ‘sufficiently clear and detailed for a reasonable employer to understand it, in light of both content

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and context, as an assertion of rights protected by the statute and a call for their protection.’”
Greathouse v. JHS Sec. Inc., 784 F.3d 105, 107 (2d Cir. 2015) (quoting Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1, 14 (2011)). “To establish a presumption of retaliation at
the initial stage of litigation, a plaintiff must present evidence that shows ‘(1) participation in a
protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment
action; and (4) a causal connection between the protected activity and the adverse employment
action.’” Johnson v. J. Walter Thompson U.S.A., LLC, 224 F. Supp. 3d 296, 312 (S.D.N.Y. 2016)
(quoting Hickes v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)). “At the pleading stage, a plaintiff
is not required to allege specific evidence as to each prima facie element, but rather must plead
facts sufficient to render [her] claim plausible.” Cabrera v. CBS Corp., No. 17-CV-6011 (CM),
2018 WL 1225260, at *3 (S.D.N.Y. Feb. 26, 2018). In the context of the EPA the standard requires
that a plaintiff “show that she raised the issue of potentially ‘gender-related’ disparate pay for
substantially similar work, but she need not have cited the EPA or accused her employer of illicit
conduct.” Johnson, 224 F. Supp. 3d at 315 n.17; see also Baguidy v. Boro Transit Inc., 283 F.
Supp. 3d 14, 31 (E.D.N.Y. 2017) (“Though specific mention of the FLSA is not necessary to make
a ‘complaint,’ some courts hold that a plaintiff must at least hint at the illegality of the defendant’s
conduct”).
The parties agree that Dunbar’s termination constitutes an adverse employment action but
disagree as to whether the FAC adequately pleads that Dunbar participated in a protected activity
of which DDB, OMS, and/or Omnicom were aware. As relevant to her EPA retaliation claim,
Dunbar alleges that “[b]ased on information and belief, as early as 2016, Dunbar’s complaints
about Defendants’ discriminatory conduct,” which included “gender-based discriminatory pay,”
“had been reported to, and were the topic of concern and internal discussion by, her male

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supervisors and Brammer.” (FAC ¶ 60.). Dunbar further alleges that she “joined with other
women in the Agency’s Connecticut office to launch ‘Feminist Fridays’ . . . to raise awareness
about sexual harassment and discrimination at the Agency, and more effectively advocate for equal
pay and equal opportunity for professional development and promotions.” (Id. ¶ 95.) According
to Dunbar, her termination was carried out “in retaliation for making sexual harassment and
discrimination complaints to her supervisors and HR for requesting and pursuing equal treatment
and for her equality advocacy.” (Id. ¶ 99.)
Defendants assert that the FAC “contains no factual allegations indicating that Plaintiff
ever complained to any specific person, whether at TracyLocke, DDB, OMS or Omnicom about
her own compensation.” (Defs.’ Mem. in Support of Mot. to Dismiss at 28.) They further argue
that “these threadbare allegations of alleged generic griping to unidentified people about pay are
insufficient to state an EPA claim against Omnicom” and challenge Dunbar’s failure to allege
“which supervisors and/or Human Resources personnel she allegedly complained to, what those
complaints were, when they were made, and/or how she otherwise opposed ‘discriminatory
compensation.’” (Defs.’ Mem. in Support of Mot. for J. on the Pleadings at 11–12, ECF No. 92.)
Defendants cite Baguidy, 283 F. Supp. 3d at 31, where the district court dismissed the plaintiff’s
FLSA retaliation claim for, inter alia, failing to put the defendant on notice that the plaintiff was
asserting his statutory rights, citing the plaintiff’s failure to allege any facts concerning “the
contexts in which the[] complaints were made and the content of the complaints,” and concluding
that “Plaintiff’s allegations amount to nothing more than ‘abstract grumblings,’ which do not
create a retaliation claim.” (quoting Valerio v. Putnam Assocs., 173 F.3d 35, 44 (1st Cir. 1999)).
The Court agrees with Defendants that the FAC fails to set forth the requisite specificity to
allege a plausible EPA retaliation claim against OMS, DDB, or Omnicom. While on a motion to

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dismiss, Dunbar need not necessarily “allege with such specificity the who, what, when, and where
that Defendants suggest is required,” her pleadings must at least “give Defendants adequate notice
and plausibly allege that [she] engaged in protected activity.” Cabrera, 2018 WL 1225260, at *5.
Here, the FAC contains only the barest of allegations that Dunbar complained of “gender-based
discriminatory pay” and “advocate[d] for equal pay” through the “Feminist Fridays” initiative.
(FAC ¶¶ 60, 95.) Nowhere does the FAC indicate that Dunbar “ever complained, let alone
repeatedly, that defendants were engaged in a violation of law” or otherwise made a complaint to
Defendants that set forth “a clear articulation of facts indicative of illegality” as opposed to having
presented generalized grievances about the Agency’s practices. See Dunn v. Sederakis, 143 F.
Supp. 3d 102, 112–13 (S.D.N.Y. 2015); see also Kassman, 925 F. Supp. 2d at 473 (holding that
plaintiff’s complaints “about her salary cut . . . discrimination generally . . . and harassment and
disparate treatment generally” failed “to state a retaliation claim under the FLSA or the New York
Labor Law, as there is no indication that any Plaintiffs were actually complaining of EPA or
NYSEPA violations such that these complaints constituted ‘an assertion of rights protected by the
statute’ and a ‘call for their protection.”’) (quoting Kasten, 563 U.S. at 14). Indeed, the FAC does
not include any allegation that Dunbar complained to anyone about her pay being unfairly or
illegally lower than that of her male counterparts.
In short, because the FAC fails to suggest plausibly that Dunbar ever invoked the EPA or
presented a complaint to the Defendants about her alleged pay disparity—oral or otherwise,
Defendants’ motion to dismiss the EPA retaliation claims against OMS and DDB is GRANTED
without prejudice, and Defendants’ motion for judgment on the pleadings with respect to the EPA
retaliation claim against Omnicom is likewise GRANTED without prejudice to the filing of an

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amended complaint. As with the EPA pay disparity claims, the Court will also dismiss sua sponte
the parallel EPA retaliation claims as to TracyLocke without prejudice. 10
Libel Claim Arising from Brammer’s Statement to the New York Times
Defendants next argue that Plaintiff has failed to state a claim of libel based on Brammer’s
statement to the New York Times because her statement was a non-actionable opinion, and because
the statement did not injure Dunbar in her profession so as to constitute a case of libel per se.
“At common law, 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.”
Gleason v. Smolinski, 319 Conn. 394, 430, 125 A.3d 920 (2015) (quotation marks and brackets
omitted). “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.” Id. at 431 (quoting Cweklinsky v. Mobil Chem. Co., 267 Conn.
210, 217, 837 A.2d 759 (2004)). “[T]o be actionable, the statement must be false . . . and under
the common law, truth is an affirmative defense to defamation . . . the determination of the
truthfulness of a statement is a question of fact for the jury.” Id. (quoting Cweklinsky, 267 Conn.
at 228–29). The statement must also “convey an objective fact, as generally, a defendant cannot
be held liable for expressing a mere opinion.” Crismale v. Walston, 184 Conn. App. 1, 18, 194
A.3d 301 (App. Ct. 2018).

10
The Court reaches the same conclusion with respect to Dunbar’s purported wrongful termination claim under the
EPA against all Agency Defendants (Count Ten), which appears wholly duplicative of her EPA retaliation claim. (See
FAC ¶ 208 (alleging that the Agency Defendants “terminated Dunbar’s employment in retaliation for her complaining
to supervisors and HR about discriminatory compensation and actively promoting equal compensation for herself and
other female employees of the Agency”).) Nor does Dunbar identify any authority to support the notion that the EPA
recognizes a separate cause of action for wrongful termination or wrongful discharge.

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Defamation is “actionable per se” if it either “charges a crime which involves moral
turpitude or to which an infamous penalty is attached,” or it “injure[s] a man in his profession and
calling.” Skakel v. Grace, 5 F. Supp. 3d 199, 206 (D. Conn. 2014) (quoting Gambardella v. Apple
Health Care, Inc., 86 Conn. App. 843, 850–51, 863 A.2d 735 (App. Ct. 2005)). As to the latter
category, the defamation “is actionable per se if it charges improper conduct or lack of skill or
integrity in one’s profession or business and is of such a nature that it is calculated to cause injury
to one in his profession or business.” Lowe v. City of Shelton, 83 Conn. App. 750, 766–67, 851
A.2d 1183 (App Ct. 2004) (citation omitted). “Once the plaintiff has established that the words
are false and actionable per se, barring any statutory provision to the contrary, she is entitled under
Connecticut law to recover general damages without proof of special damages.” Silano v. Cooney,
189 Conn. App. 235, 242, 207 A.3d 84 (App. Ct. 2019) (quoting Miles v. Perry, 11 Conn. App.
584, 602, 529 A.2d 199 (App. Ct. 1987)).
As noted previously, Dunbar’s libel per se claim is based on an alleged defamatory
statement Brammer published to the New York Times. Specifically, Plaintiff alleges:
In a widely disseminated article titled, “#MeToo Clashes with ‘Bro Culture’ at Ad
Agencies,” Brammer asserts as fact the following statement wrongly accusing Dunbar of
making false claims against the Agency: “Teresa Brammer, the agency’s chief human
resources officer, said that Ms. Dunbar’s accusations were found by external investigators
to be without merit, adding that ‘there is no higher priority than creating a safe, fair and
equitable workplace for our associates.’”
(FAC ¶ 124.) The FAC also includes a hyperlink to the New York Times article dated December
22, 2019, 11 which Defendants have separately filed along with a request for judicial notice. In it,
the alleged defamatory statements attributed to Brammer are preceded by the following statement:
In a discrimination lawsuit filed against TracyLocke in June, Ms. Dunbar claimed that male
colleagues referred to her as a “nagging wife,” suggested taping her mouth shut, threw
papers in her face and rubbed her back in view of colleagues. She also accused Hugh Boyle,
the company’s chief executive, of encouraging “male managers and subordinates to
11

https://www.nytimes.com/2019/12/22/business/media/ad-industry-sexism.html (last accessed February 17, 2021).

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incorporate” a vulgar term for female genitalia “into their workplace dialogue.” (The suit
has yet to be resolved.)
(Defs.’ Ex. 1, ECF No. 88-1.)
Defendants first assert that Brammer’s statement that “Ms. Dunbar’s accusations were
found by external investigators to be without merit” is not actionable because it is an opinion and
not a statement of fact. “A statement can be defined as factual if it relates to an event or state of
affairs that existed in the past or present and is capable of being known. . . . In a libel action, such
statements of fact usually concern a person’s conduct or character . . . . An opinion, on the other
hand, is a personal comment about another’s conduct, qualifications or character that has some
basis in fact.” NetScout Sys., Inc. v. Gartner, Inc., 334 Conn. 396, 411, 223 A.3d 37 (2020)
(quoting Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111, 448 A.2d 1317
(1982)). “Context is a vital consideration in any effort to distinguish a nonactionable statement of
opinion from an actionable statement of fact.” Id. at 412. The Connecticut Supreme Court has
synthesized from the relevant case law three overarching considerations to be applied in
determining whether an alleged defamatory statement is an actionable statement of fact: “(1)
whether the circumstances in which the statement is made should cause the audience to expect an
evaluative or objective meaning; (2) whether the nature and tenor of the actual language used by
the declarant suggests a statement of evaluative opinion or objective fact; and (3) whether the
statement is subject to objective verification.” Id. at 414. “Whether a statement is an assertion of
a fact or an assertion of an opinion is a question of law.” Crismale, 184 Conn. App. at 18.
Defendants rely on a series of cases which hold, generally, that “press statements, released
by parties to commercial litigation, and/or statements by a litigant condemning an opponent’s legal
claims as ‘baseless,’ ‘frivolous,’ or without merit, [are] non-actionable opinions, and therefore not
libelous or defamatory, as a matter of law.” (Defs.’ Mem. in Support of Mot. to Dismiss at 31.)
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See Traylor v. Parker, No. FSTCV135015533S, 2016 WL 5003981, at *4 (Conn. Super. Ct. Aug.
4, 2016) (holding “that any statements contained in the broadcast to the effect that the plaintiff’s
lawsuits were frivolous, or that they were varied or imaginative are statements of pure opinion,”
as “[c]ourts in this state and others, as well as federal courts, have consistently determined that
characterizing a lawsuit as frivolous, foolish or in some other derogatory manner constitute matters
of opinion”); Alzheimer’s Found. of Am., Inc. v. Alzheimer’s Disease & Related Disorders Ass’n,
Inc., 796 F. Supp. 2d 458, 471 (S.D.N.Y. 2011) (“[A] statement condemning an opponent’s legal
claims as ‘baseless’ is mere opinion and is not defamatory”) (applying New York law); Ferlauto
v. Hamsher, 74 Cal. App. 4th 1394, 1403, 88 Cal. Rptr. 2d 843 (Cal. Ct. App. 1999) (“[T]he
numerous descriptions of the lawsuit and the motion as ‘stupid,’ ‘laughed at,’ ‘a joke,’ ‘spurious,’
and ‘frivolous,’ are common characterizations which are nothing more than ‘the predictable
opinion’ of one side to the lawsuit.”) (applying California law).
The Court takes no issue with these principles. But they simply have no application here.
Brammer is not alleged to have merely characterized Dunbar’s suit as baseless or frivolous;
instead, she allegedly stated to the New York Times that “Ms. Dunbar’s accusations were found by
external investigators to be without merit.” (FAC ¶ 124.) Thus, even allowing that the context in
which the statement was made involved an “evaluative” component vis-à-vis the litigation, “the
nature and tenor of the actual language used by [Brammer] suggests” a reliance upon “objective
fact”—i.e., the outcome of an external investigation. NetScout Sys., 334 Conn. at 414. Moreover,
the statement itself is “subject to objective verification,” id., as both the fact of whether an external
investigation was undertaken, and if so, its outcome, can be ascertained. 12

12

For this reason the Court also finds distinguishable Karp v. Hill & Knowlton, Inc., 631 F. Supp. 360 (S.D.N.Y.
1986), a case cited by the Defendants applying New York law. There, the defendant was a public relations agent that
had composed a press release describing a recent Second Circuit decision that had vacated a preliminary injunction

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Nor is the Court persuaded by Defendants’ assertion that the fact that the New York Times
article indicated that the lawsuit “has yet to be resolved” rendered the statement “incapable of
proof or disproof” (Defs.’ Mem. in Support of Mot. to Dismiss at 32) because of the ongoing nature
of the lawsuit. Whether or not an external investigation was conducted, concluded, and either
corroborated or defeated Dunbar’s allegations are questions wholly distinct from the status of the
lawsuit.
Defendants next argue that because Brammer’s alleged statement does not impugn
Plaintiff’s professional integrity, it does not constitute libel per se and the claim must accordingly
be dismissed insofar as Dunbar has not alleged special damages. None of the parties has cited
particularly helpful or relevant case law on this issue. At this stage the Court declines to dismiss
Dunbar’s defamation claim on this basis. First, when read in the context of an article describing a
discrimination lawsuit brought by a former employee against her former employer, an alleged
statement by the employer’s Human Resources Director that the former employee’s lawsuit was
determined to be without merit could reasonably call that employee’s professional integrity into
question. Moreover, it is reasonable to infer that such a statement could harm that employee’s
efforts to procure subsequent employment within the same field. Second, even assuming that
Dunbar has not pled a case of libel per se and must proceed on a theory of libel per quod, she has
alleged special damages in the form of economic loss from damage to her career. “Connecticut

brought by its client against the plaintiff in the context of another lawsuit. See id. at 361–62. The press release stated,
inter alia, that the judicial decision “supports our claims that [the plaintiff] defrauded [the client].” Id. at 362. Because
this statement constituted “a comment on an ongoing court battle” made on behalf of a party to the litigation, the
district court found it to be a non-actionable opinion. See id. at 365. The court further noted that “[a]s one
interpretation of a relatively complex and lengthy judicial opinion, the statement in question could never be proven
right or wrong, much less ‘true or false,’” as “whether the Second Circuit approved of [the client’s] claims on the
merits is still an open question.” Id. Here, by contrast, Brammer did not allegedly state that the external investigators’
findings “supported” the Agency’s litigation position but, rather, allegedly made an affirmative statement that
Dunbar’s accusations were investigated by a third party and found by that third party to be meritless. Her statement
therefore could be proven true or false.

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courts have held that allegations of economic loss need not be very detailed,” and have accepted,
at the pleading stage, the “allegation that slanderous statement caused ‘economic loss and loss of
business income’ or a mere allegation of ‘economic damages.’” Marshall v. Webster Bank, N.A.,
No. 3:10-CV-908 (JCH), 2011 WL 1303373, at *2 (D. Conn. Apr. 6, 2011) (citing Cavallaro v.
Rosado, No. CV054009939, 2006 WL 2949143, at *9–*10 (Conn. Super. Ct. Oct. 5, 2006), and
Ambrozaitis v. Lord, No. CV0540044557S, 2006 WL 2949140, at *1 (Conn. Super. Ct. Oct. 3,
2006)) (alterations and ellipsis omitted). Dunbar does allege that she has suffered economic harm
and faced damages to her career as a result of the alleged defamation. (FAC ¶ 127.) At this stage,
these allegations are sufficient to state a case of libel per quod.
Accordingly, Defendants’ motion to dismiss the libel per se claim is DENIED. 13
Contract Claims Against DDB and OMS
Finally, Defendants argue for dismissal of Plaintiff’s breach of contract claim against DDB
and OMS. This claim is asserted against all Agency Defendants and is premised on the Agency’s
alleged breach of its sexual harassment policies as set forth, inter alia, in the Employee Handbook.
(FAC ¶¶ 223–30.) Defendants argue in conclusory fashion that the claim must be dismissed
because Dunbar’s employment was at-will and she does not allege any policy or contract that
precluded Defendants’ right to terminate Dunbar. Alternatively, DDB and OMS assert that Dunbar
fails to allege facts supporting her allegation that DDB or OMS breached the sexual harassment
policy contained in the Employee Handbook by failing to investigate or act upon any of Dunbar’s
complaints. Dunbar responds by citing Brosler v. Food Automation-Serv. Techniques, Inc., No.

13
Defendants also ask the Court to dismiss the Plaintiff’s retaliation claims to the extent they are predicated on the
alleged libelous statement. (Defs.’ Mem. in Support of Mot. to Dismiss at 34.) The Court has already dismissed
Plaintiff’s Title VII and CFEPA retaliation claims as to OMS and DDB and Plaintiff’s EPA retaliation claims in their
entirety. The Court expresses no view as to the merits of Defendants’ assertion with respect to the remaining Title
VII and CFEPA retaliation claims against TracyLocke and Omnicom as Defendants have not moved to dismiss these
claims.

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3:96-2345 (DJS), 1997 WL 711438, at *4 (D. Conn. Aug. 25, 1997), a case which denied a motion
to dismiss a breach of contract claim involving a sexual harassment policy in the defendant’s
handbook without discussion of the propriety of basing a contract claim on such an alleged
promise. She also cites Patterson v. Waterford Hotel Grp., Inc., No. 3:09-CV-926 (JBA), 2010
WL 11566253, at *2 (D. Conn. Mar. 2, 2010), in which the district court observed that “[u]nder
Connecticut law, an employment manual may under appropriate circumstances, provide a basis
for finding that an employment contract existed which limited the employer’s right to discharge
the employee, even when the employment is at-will.” (quotation marks and citations omitted).
Because resolution of this issue appears to require consideration of facts outside of the
complaint, the Court does not find this issue appropriate for disposition under Rule 12(b)(6).
While Dunbar quotes from the Employee Manual in her complaint and Defendants assert that the
Handbook contains a contract disclaimer, the Handbook is not attached to the pleadings, so even
if incorporated into or integral to the complaint, the Court cannot ascertain whether or to what
extent it may have created binding obligations on any of the parties. Defendants, moreover, do
not differentiate any basis for dismissing the contract claims against OMS and DDB specifically
as opposed to Omnicom and TracyLocke, other than their disavowal of Plaintiff’s single employer
theory, which Defendants do not address in the context of the breach of contract claim. 14 The
Court, in any event, would not deem this an adequate basis for dismissal at this juncture for the
reasons discussed in footnote two, supra. The motion to dismiss the breach of contract claims is
therefore DENIED.

14

Indeed, the Defendants asserted that the Court need not assess the sufficiency of Dunbar’s single employer
allegations if the Court agrees with Defendants, as the Court has, that Dunbar failed to exhaust her Title VII and
CFEPA claims against OMS and DDB. (See Defs.’ Mem. in Support of Mot. to Dismiss at 23.)

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Conclusion
For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 86) is GRANTED in
part and DENIED in part. The Title VII and CFEPA claims against DDB and OMS are
DISMISSED with prejudice and the EPA claims against DDB, OMS, and TracyLocke are
DISMISSED without prejudice to the filing of an amended complaint. The motion is otherwise
DENIED. Defendants’ motion for judgment on the pleadings as to the Plaintiff’s EPA claims
against Omnicom (ECF No. 89) is GRANTED without prejudice to the filing of an amended
complaint. Any amended complaint must be filed on or before March 22, 2021.
SO ORDERED at Bridgeport, Connecticut, this 18th day of February 2021.

/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE

35