Pawlow v. Dep't of Emergency Servs. & Pub. Prot.

• Decision Date: 23 March 2016
• Docket Number: Case No. 3:14-cv-1282 (CSH)
• Citation: 172 F.Supp.3d 568
• Parties: April Pawlow, Plaintiff, v. Department of Emergency Services and Public Protection, Defendant.
• Court: U.S. District Court — District of Connecticut

172 F.Supp.3d 568

April Pawlow, Plaintiff,

v.Department of Emergency Services and Public Protection, Defendant.

Case No. 3:14-cv-1282 (CSH)

United States District Court, D. Connecticut.

Signed March 23, 2016

Christine S. Synodi, Synodi & Videll, LLC, Waterford, CT, for Plaintiff.

Ann E. Lynch, Jennifer P. Bennett, Attorney General's Office, Hartford, CT, for Defendant.

RULING ON MOTION TO DISMISS

CHARLES S. HAIGHT, JR.

, Senior United States District Judge

Plaintiff April Pawlow, a state trooper with the Connecticut Department of Emergency Services and Public Protection, Division of the State Police, brings this suit for discrimination on several federal and state grounds. Plaintiff is suing the State of Connecticut Department of Emergency Services and Public Protection, Connecticut State Police Division for claims arising under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e

), the Fair Labor Standards Act (29 U.S.C. § 207(r)(1) ), the Connecticut Fair Employment Practices Act (Conn. Gen. Stat. 46a–60(a)(1) and 46a–60(a)(5) ), and Connecticut General Statutes §§ 31–40(w)(b)-(C). Plaintiff alleges that after her return from maternity leave, she was discriminated against because of her need to express breast milk.¹ The Defendant has filed a [Doc. 11] motion to dismiss, which this ruling decides.

I.

On March 21, 2013, Pawlow returned from maternity leave to her position as a state trooper. Doc. 1, ¶ 8.² On that same day, Pawlow informed her supervisor, Sergeant Whelan, that she would need to express breast milk during her midnight shift. Doc. 1, ¶ 9.³ Pawlow noted to Sergeant Whelan that she could use her breast pump either in the troop barracks or in a resident trooper's office. Doc. 1, ¶ 10. Sergeant Whelan said that Pawlow could go home during her shift to pump breast milk. Doc. 1, ¶ 11.⁴ Pawlow asked how her availability would be handled, because she could not respond to calls while pumping. Doc. 1, ¶ 13. Sergeant Whelan's response was that she should inform dispatch that she was on break, and he would inform other Sergeants about her needs. Doc. 1, ¶ 14.

A couple of weeks later, on April 10, 2013, Pawlow was working an overtime shift under Sergeant Derry. Doc. 1, ¶ 15. Sergeant Derry asked to see Pawlow in his office after roll call. Doc. 1, ¶ 16. During this interaction, Sergeant Derry told Pawlow that her eye glasses were against policy because the designs on the sides “did not match the uniform and were unacceptable and not professional.” Id. Pawlow asked if she was being ordered to purchase new glasses and was told to “do what you have to do.” Id. Pawlow then asked if there was any policy in the State Police Administrative Operations Manual (“A & O”) regarding eye glasses, and was told that there was. Doc. 1, ¶ 17.

Pawlow was unable to find any such policy in the A & O. Doc. 1, ¶ 18. Additionally, no other senior officer that she consulted agreed that her eye wear was against policy. Id. Pawlow's glasses were the same glasses she wore before her maternity leave, and she had never been told they were unacceptable before April 2013. Id.

Additionally, other officers suggested that the directive regarding her glasses “was because she was a female.” Doc. 1, ¶ 19. The officers also suggested that she should document the chain of events and that she should not change her eye glasses. Id.

Shortly thereafter, on April 13, 2013, Sergeant Whelan told Pawlow that if Sergeant Derry saw her still wearing her glasses, that “he'd make you get rid of them.” Doc. 1, ¶ 20. Furthermore, on April 22, 2013, Sergeant Whelan followed up with Pawlow and said that Sergeant Derry would be “looking for you to change your glasses.” Doc. 1, ¶ 21.

On April 22, 2013, Pawlow emailed Sergeant Derry to request that he put any directives to her in writing. Doc. 1, ¶ 22. In response, Sergeant Derry emailed to say that he had not directed her to purchase new glasses, but that her current glasses “'detracted from presenting professional appearance while in uniform' and that she had until April 26, 2013 to 'remedy' the situation”. Doc. 1, ¶ 23. Pawlow expressed to a more senior trooper, Trooper Kathy Henry, that she was concerned Sergeant Derry's directive was given because he disliked the presence of women on the force. Doc. 1, ¶ 24.

Thereafter, the Complaint alleges on information and belief that Master Sergeant Torneo requested a photo of Pawlow's glasses from a third Sergeant, Tomasetti. Doc. 1, ¶ 25. Presumably, Master Sergeant Torneo is the superior of Sergeants Derry, Whelan, and Tomasetti, though the Complaint does not describe their relationship. Pawlow further alleges upon information and belief that Master Sergeant Torneo stated to Sergeant Tomasetti that Pawlow “was 'going home to feed her kid or something and we don't have to let her do that, so why doesn't she just drop the glasses issue?”' Doc. 1, ¶ 26.

Pawlow then engaged her union regarding the eye glasses. Doc. 1, ¶ 27. On April 25, 2013, Pawlow provided a memorandum stating that because she was not in violation of any A & O directive, she would continue to wear her glasses. Id.

On April 26, 2013, Sergeant Derry expressed to Pawlow that she was getting herself into trouble by not following orders, by not responding in writing as required, and by not making the changes to her eye glasses. Doc. 1, ¶ 28.

On April 30, 2013, Pawlow met with the Master Sergeant and the Lieutenant on the issue. Doc. 1, ¶ 29. Pawlow brought along her union representation. Id. Pawlow was told that she was insubordinate for failing to follow orders. Id. Pawlow was given the choice of taking a negative “Trooper Performance Observation Report” and changing her glasses or being subjected to an internal affairs investigation on the issue. Id. Though unclear from the Complaint, the briefing on the motion to dismiss makes clear that Pawlow was ultimately given a negative “Trooper Performance Observation Report.” Doc. 15, p. 6. Pawlow, however, refused to change her glasses and grieved the issue, believing it to be in retaliation for her gender and maternity status. Doc. 1, ¶ 30. On about May 5, 2013, Pawlow was told by Trooper Henry that the issue was “dead” from above and she could continue to wear her eye glasses. Doc. 1, ¶ 31.

During the time of this conflict, Pawlow was still returning home during her shift to express breast milk. Doc. 1, ¶ 32. However, on March 22, 2013, Pawlow was required to attend an “in-service training” at the police academy. Doc. 1, ¶ 33. There was no accommodating area available for her during this training for her to use the breast pump. Id. Pawlow was instead instructed to use the women's locker room, which had no locking door. Id.

During a subsequent shift, Pawlow was dispatched to a call despite being unavailable due to breast pumping. Doc. 1, ¶ 35. Pawlow rushed to the call, but still had to explain to fellow officers why she was not able to respond to the call in a timely manner. Id. To avoid such issues going forward, Pawlow began to text the other officers to let them know she was pumping and unavailable. Doc. 1, ¶ 36. This caused Pawlow to feel embarrassed. Id.

Finally, on April 2, 2013, Pawlow was required to attend training at a gun range in order to qualify for a new weapon. Doc. 1, ¶ 37. Pawlow “assumed” that there would be an area at the range where she could use her breast pump; however, when she arrived, she realized that there was no running water at the range and no private rooms. Id. The range only had “porto-potties,” which were not sufficiently clean or appropriate for use. Id. Pawlow had to request that an employee leave a particular area so that she could use her breast pump. Doc. 1, ¶ 38.

Pawlow's treatment during this period by her employer caused “undue emotional stress, hardship, and an invasion of her privacy.” Doc. 1, ¶ 40. This, coupled with the irregularity in when Pawlow could pump, caused Pawlow to experience a diminished production of breast milk. Doc. 1, ¶ 41. This ultimately led her to stop breast feeding. Doc. 1, ¶ 42.

II.

Defendant moves to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1)

for lack of subject-matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

To survive a motion to dismiss under 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.”' As h croft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

(quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A complaint must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. “A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.”' Id . (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). “Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.”' Id.

(quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation.”' Id . (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id . at 679, 129 S.Ct. 1937.

Furthermore, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal , 556 U.S. at 679, 129 S.Ct. 1937

. This requires the plaintiff to plead facts “allow[ing] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id . at 678, 129 S.Ct. 1937. Importantly, the complaint must demonstrate “more...