Anderson v. Derby Bd. Of Educ.

Decision Date18 June 2010
Docket NumberNo. 3:08-CV-1365 (CSH).,3:08-CV-1365 (CSH).
Citation718 F.Supp.2d 258
PartiesSteven B. ANDERSON, Plaintiff, v. DERBY BOARD OF EDUCATION, Janet Robinson, City Of Derby, and Tony Staffieri, Defendants.
CourtU.S. District Court — District of Connecticut



Daniel Shepro, Shepro & Blake, Stratford, CT, Stuart Hawkins, Bridgeport, CT, for Plaintiff.

Michel Bayonne, Stephen M. Sedor, Durant, Nichols, Houston, Hodgson & Cortese-Costa PC, Bridgeport, CT, Joseph W. McQuade, Kainen, Escalera & McHale, PC, Hartford, CT, for Defendants.


HAIGHT, Senior District Judge:


Plaintiff has brought this age discrimination action for unlawful termination of his employment. Two of the four named defendants have moved to dismiss the first two counts in Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The relevant facts, as set forth in the pleadings, appear below.

A. Facts

Plaintiff Steven B. Anderson (hereinafter Plaintiff) was born on August 11, 1956. Doc. # 1, p. 6 (¶ 2). He was hired as the “Director of Technology” by the Board of Education for the City of Derby (“BOE”) in May of 2005. Id., p. 7 (¶ 10); Doc. # 17-1 (Anderson Dec. ¶ 2). On or about June 19, 2007, the BOE terminated Plaintiff's employment for the stated reason of “insubordination and outrageous behavior.” Doc. # 1, p. 7 (¶¶ 12, 14); Doc. # 17-1 (¶ 3). On that date, Plaintiff was fifty years old. Doc. # 15-2 (CHRO Complaint), p. 3 (¶ 4). Plaintiff maintains that the BOE's stated reason for termination was pretextual in that he was actually terminated on the basis of his age. 1 Doc. # 1, p. 7 (¶ 15), Doc. # 15-2, p. 3 (¶ 10). The BOE replaced Plaintiff as Director of Technology with a younger employee. Doc. # 1, p. 7 (¶ 16); Doc. # 15-2, p. 3 (¶ 11).

On December 13, 2007, Plaintiff filed a charge of age discrimination and whistleblower retaliation and with the United States Equal Employment Opportunity Commission (“EEOC”) and the State of Connecticut Commission on Human Rights and Opportunities (“CHRO”). Doc. # 15-2, pp. 1-4; Doc. # 17-1, pp. 1-2 (¶ 4). Such filings took place within 180 days after the BOE's discharge of Plaintiff. 2

In his CHRO/EEOC Complaint (“CHRO Complaint”), Plaintiff listed “the BOE of the City of Derby and its agent, Janet Robinson, Superintendent of Derby Public Schools,” as the sole respondents. 3 Doc. # 15-2, p. 1, 1. 3, and p. 3 (¶ 2). Plaintiff's CHRO Complaint made no mention of the City of Derby (herein “Derby”) or Derby's Mayor, Tony Staffieri.

On or about May 21, 2008, the CHRO released its jurisdiction over Plaintiff's age discrimination claim. Doc. # 1, p. 8 (¶ 22b.). On August 15, 2008, Plaintiff commenced a civil action in Connecticut Superior Court for the Judicial District of Ansonia/Milford. Doc. # 1, pp. 6-19 (Complaint). The action commenced after the CHRO had terminated its proceedings, in compliance with 29 U.S.C. § 633(b), and more than 60 days after Plaintiff filed his charge with the EEOC (December 13, 2007), in accordance with 29 U.S.C. § 626(d). 4 In his state court action, Plaintiff sued the following four defendants (herein Defendants) for unlawful termination of his employment: Derby; the BOE; the Mayor of Derby, Tony Staffieri; and the Superintendent of Schools for the City of Derby, Janet Robinson. Plaintiff's Complaint set forth five counts arising out of his discharge: (1) unlawful age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1); 5 (2) unlawful age discrimination under the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen.Stat. § 46a-60(a)(1); (3) violation of public policy and the First Amendment; 6 (4) breach of contract ( i.e., termination of employment despite satisfactory performance); and (5) promissory estoppel. 7 Doc. # 1, pp. 6-19.

On September 10, 2008, defendants BOE and Robinson removed the case to this Court on the ground that it has original jurisdiction over Plaintiff's claims arising under the ADEA, 29 U.S.C. § 621 et seq., and the First Amendment to the Constitution. Doc. # 1 (Notice of Removal), p. 2 (¶ 3). 8 In addition, the removal notice stated that the Court may exercise supplemental jurisdiction over Plaintiff's related state law claims pursuant to 28 U.S.C. § 1441(c). 9 Id. Plaintiff filed no motion to remand or otherwise indicated any intention to contest the removal of his case to district court within 30 days after the BOE and Robinson filed their notice of removal.

10 Any procedural errors in removal have thus been waived.

B. Current Motion to Dismiss

Pending before this Court is a motion to dismiss filed by Defendants Staffieri and Derby, requesting dismissal of Counts One and Two of Plaintiff's Complaint on the grounds that each count fails to state a claim upon which relief may be granted and/or falls outside the subject matter jurisdiction of the Court. See Fed.R.Civ.P. 12(b)(1) and 12(b)(6). 11

First, Defendant Staffieri contends that Counts One and Two should be dismissed as to him because there is no individual liability under the ADEA or CFEPA. Consequently, Staffieri contends that pursuant to Fed.R.Civ.P. 12(b)(6), these counts fail to set forth valid claims against him in that no relief may be granted under any set of facts that might support Plaintiff's claim.

Second, Defendant Derby asserts that by omitting Derby as a respondent in Plaintiff's complaint filed with the CHRO and EEOC, Plaintiff has failed to exhaust his administrative remedies as to Derby under the ADEA or CFEPA. Therefore, Derby maintains, these claims must be dismissed against it because the Court lacks subject matter jurisdiction over them pursuant to Fed.R.Civ.P. 12(b)(1).

Third, Derby asserts that the Court lacks subject matter jurisdiction over the CFEPA claim brought against it because Plaintiff is unable to produce the requisite release of jurisdiction from the CHRO to authorize suit. See Conn. Gen.Stat. § 46a-101. 12 Derby asserts that, on that basis, Plaintiff's alleged CFEPA claim should be dismissed pursuant to Rule 12(b)(1).

II. STANDARD OF REVIEW A. Rule 12(b)(6)-Failure to State A Claim

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should be granted only if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir.1985). Such a motion “tests, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits.” 13 Global Network Communications, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir.2006). It “assesses the legal feasibility of the complaint, but does not weigh the evidence that might be offered to support it.” Id., 458 F.3d at 155; accord AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir.2003). See also Festa v. Local 3 Int'l Brotherhood of Elec. Workers, 905 F.2d 35, 37 (2d Cir.1990) (the court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient”).

In deciding a Rule 12(b)(6) motion, “a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir.1996). The court may also consider “matters of which judicial notice may be taken” and documents of which plaintiff “had knowledge and relied on in bringing suit.” Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993).

The court then accepts “the allegations contained in the complaint as true” and draws “all reasonable inferences in favor of the nonmoving party, Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), unless the allegations are ‘supported by mere conclusory statements,’ Ashcroft v. Iqbal, ---U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).” Hayden v. Paterson, 594 F.3d 150, 157 n. 4 (2d Cir.2010). See also Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996) ([w]hile the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice”).

In order [t]o 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.’ Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Moreover, [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.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

B. Rule 12(b)(1)-Lack of Subject Matter Jurisdiction

Under Fed.R.Civ.P. 12(b)(1), [a] case is properly dismissed for lack of subject matter jurisdiction ... when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). It is generally the plaintiff's burden to prove by a preponderance of the evidence that such jurisdiction exists. Id. When subject matter jurisdiction is challenged under Rule 12(b)(1), both “the movant and the pleader may use affidavits and other pleading materials to support and oppose such motions,” without converting the motion to one for summary judgment. Golnik v. Amato, 299 F.Supp.2d 8, 13 (D.Conn.2003) (internal citations omitted). A Rule 12(b)(1) motion for lack of subject matter jurisdiction is often appropriate when the plaintiff has failed to exhaust administrative remedies prior...

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