Dighello v. Thurston Foods, Inc.

Decision Date09 May 2018
Docket NumberCivil Action No. 3:16–CV–1340 (CSH)
CourtU.S. District Court — District of Connecticut
Parties Judith DIGHELLO, Plaintiff, v. THURSTON FOODS, INC., Defendant.

Emanuele Robert Cicchiello, Megan Leigh Michaud, Michael John Reilly, Cicchiello & Cicchiello, LLP, Hartford, CT, for Plaintiff

Joseph W. McQuade, Kainen, Escalera & McHale, PC, Hartford, CT, for Defendant


HAIGHT, Senior District Judge:

In this employment discrimination and wrongful discharge case, defendant and former employer Thurston Foods, Inc. ("Thurston") moves the Court to dismiss three of Plaintiff Judith Dighello's claims. The Court resolves the motion herein.


The facts summarized in this Ruling are extracted from the allegations of Plaintiff's Complaint. In March of 2011, Plaintiff commenced employment with Defendant Thurston, a wholesale food service distributor, as a router and dispatcher. Doc. 1 ("Complaint"), ¶ 6. In that position, she coordinated routes for the company's delivery trucks and drivers. Id. Plaintiff alleges that due to the doubling of her workload over time and "the fact that she was instructed to coordinate deliveries for approximately fifty-five (55) vehicles," Thurston required her to work "twelve and a half (12.5) hour shifts, without breaks for lunch or rest, each day." Id. , ¶ 9.

In early April 2015, Plaintiff became ill "with walking pneumonia

and a respiratory infection." Id. , ¶ 10. According to Plaintiff, her physician instructed her to remain out of work for two days. Id. Plaintiff provided Thurston with a copy of an "out-of-work note from her physician." Id. In response to the note, Thurston informed her that she was not entitled to sick pay. Id. , ¶ 11. When Plaintiff returned to work two days later, she informed Thurston's management that she would need to "lighten her work load, at least temporarily, until her symptoms improved." Id. , ¶ 12. Thurston's management then allegedly reminded her that she was not permitted to take breaks and that she must work twelve and a half hour shifts. Id.

Plaintiff further alleges that on or around the time of her illness, Thurston "hired a male employee named Art (last name unknown)," whom she believes was "hired to replace" her. Id. , ¶ 13. Art worked with Plaintiff for a period of time and also went to classes "to learn how to perform the [P]laintiff's job duties." Id. , ¶ 14. Moreover, around this time, Bob Thurston, the Defendant's secretary and head of transportation, told Plaintiff, "Women should not be hired for this position" because they "are too weak for this job." Id. , ¶ 15.

Shortly thereafter, Plaintiff suffered a bronchial asthma

attack while in the office and went to MidState Medical Center in Meriden for emergency treatment. Id. , ¶ 16. While at the medical center, she "underwent x-rays, was prescribed an inhaler, and was put on medication." Id. , ¶ 17.

When Plaintiff returned to work, "and despite her condition," she was "again instructed by [her employer] that she was still required to work the full twelve and a half (12.5) hour shifts, without breaks for rest or lunch." Id. , ¶ 17.

During late April 2015, "in response to a failed EPA inspection," Bob Thurston instructed Plaintiff to assemble logs for the EPA, describing how much fuel was dispensed to each of approximately fifty (50) separate drivers dating back two weeks. Id. , ¶ 29. Plaintiff informed Bob Thurston that "she was already busy handling dispatch and routing" and "was already working twelve and a half (12.5) hours per day." Id. , ¶ 30. She suggested that "another employee could easily handle the task" of assembling the logs, but Bob Thurston responded by instructing her to "come in earlier and get it done." Id.

On or about May 7, 2015, after compiling the forms from information provided by Jim Thurston, another representative of Defendant, Plaintiff submitted the requested report to Bob Thurston. Id. , ¶ 32. Bob reacted by waving the pages of the report in front of Plaintiff's face and "screaming at her" in front of ten other employees, complaining "that the numbers contained in the report did not match." Id. Plaintiff informed him that she "had checked the math on the reports three times" and "understood that the numbers did not match." Id. , ¶ 33. Nevertheless, she had input the information that Jim Thurston had provided. Id. Bob Thurston continued with his "verbal tirade," this time accusing Plaintiff of not knowing how to do math.1 Id., ¶ 34. He concluded by screaming, "I have to do your job myself, because you're incompetent."Id. , ¶ 35.

"[S]haking in fear and embarrassment," Plaintiff informed the human resources representative that she needed to take a break, and she proceeded to walk to the parking lot." Id. , ¶ 36. Jim met her there to apologize for Bob's behavior, stating, "Bob is way too intense." Id. , ¶ 37. Plaintiff thereafter went down the street to purchase a coffee and calm down. Id. , ¶ 38. She called to speak with her supervisor, Greg, and requested the cell phone number of Defendant's human resources representative. Id. , ¶ 39. Greg told her "not to come back until she spoke with the human resources representative." Id. , ¶ 40. Plaintiff then asked Greg if Art had been hired to replace her, to which Greg responded, "I don't know." Id.

Subsequently, the human resources representative phoned Plaintiff to say that the problem with the logs was that the receipts Jim Thurston provided her were "incomplete." Id. , ¶ 41. Plaintiff then protested that, in any event, assembling the logs was not part of her job; but the representative countered, stating that "We do not have job descriptions" so that "[w]hat we give you to do is in your job description." Id. , ¶ 42.

Plaintiff then complained that "she felt she was being threatened and was being subject[ed] to a hostile work environment." Id. , ¶ 43. The representative was unsympathetic, telling her, "Being hostile isn't illegal." Id. Moreover, if she could not handle "yelling and screaming, maybe this [was]n't the job for [her]." Id. Plaintiff then asked whether she was fired, but received no response, and the conversation ended. Id. , ¶ 44. Afterward, Plaintiff texted Greg, asking, "Am I fired?" Id. , ¶ 45.

Two hours later, Greg replied by texting that she had left the company "high and dry on break" and there was "no need for 2 weeks of notice." Id. , ¶ 46. He also texted that "we will pack your stuff. Tell me where were can meet tonight to give you your stuff." Id. After that exchange with Greg, Plaintiff was not allowed back into Defendant's facility, even to retrieve her coat; and her cell phone was shut off within two hours. Id. , ¶ 47.

Under these circumstances, Plaintiff alleges she was wrongfully terminated on May 7, 2015. Id. , ¶ 48. In particular, Plaintiff alleges that she was discriminated against on the basis of her sex/gender, treated disparately as compared with similarly situated male employees, subjected to a hostile work environment, and replaced by a male employee with less experience. Id. , ¶ 49.

In her Complaint, Plaintiff alleges nine causes of action.2 In the first three counts of her Complaint, Plaintiff alleges violations under Connecticut's Fair Employment Practices Act ("CFEPA"), Conn. Gen. Stat. § 46a–60(a)(1). These include the "First Count" for discrimination based on "sex/gender" and wrongful termination; the "Second Count" for disability discrimination, perceived disability discrimination, and wrongful termination; and the "Third Count" for failure to accommodate. In her fourth and fifth counts, Plaintiff includes two retaliation claims: the "Fourth Count" for retaliation in violation of Conn. Gen. Stat. § 46a–60(a)(4) and the "Fifth Count" for retaliation in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2612, et seq. Also, under the FMLA, Plaintiff pleads the "Sixth Count" for alleged interference in violation of the FMLA. In addition, Plaintiff includes two state tort claims as the "Seventh Count" and "Eighth Count": intentional infliction of emotional distress and common law wrongful discharge, respectively. Finally, Plaintiff sets forth a "Ninth Count," alleging that by terminating Plaintiff for exercising her federal and state constitutional rights to free speech, Thurston violated Conn. Gen. Stat. § 31–51q.

Pending before the Court is Defendant's "Motion to Dismiss" [Doc. 16] in which Thurston requests that the Court dismiss three of Plaintiff's claims for "failure to state a claim upon which relief can be granted," Fed. R. Civ. P. 12(b)(6). Thurston requests the Court to dismiss the following three counts: (1) the Fifth Count in that Plaintiff "has failed to adequately allege that she exercised rights under the Family Medical Leave Act" ("FMLA"); (2) the Sixth Count because Plaintiff "has failed to allege that she requested [leave under] the [FMLA] or exercised any rights under the FMLA" and /or that she "was denied any requested leave;" and (3) the Eighth Count because Plaintiff has "failed to allege the lack of a statutory remedy which is fatal to her claim." Doc. 16, at 1.

A. Standard of Review—Rule 12(b)(6), Fed. R. Civ. P.

The standard of review for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), "for failure to state a claim upon which relief can be granted," is set forth in the United States Supreme Court's seminal holding of Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Under Iqbal , the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atlantic Corp. v. Twombly , 550 U.S 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A3 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 , ...

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