Opinion
WWMCV186014673S
01-29-2020
Kelly Scaplen v. United Services, Inc.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Cole-Chu, Leeland J., J.T.R.
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#107)
Cole-Chu, Judge Trial Referee
By her amended complaint dated March 21, 2018, following the granting of the defendant’s motion to strike her original complaint, the plaintiff, Kelly Scaplen, maintains and amends her three counts against her former employer United Services, Inc. Count one alleges pregnancy discrimination in violation of General Statutes § 46a-60(b)(7); count two alleges interference with the plaintiff’s rights under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2612 et seq. (2006); and count three alleges retaliation for the plaintiff’s exercise of her rights under the FMLA. On April 5, 2019, the defendant moved (# 107) to strike all three counts of the amended complaint. The plaintiff filed an opposition, with brief, on June 6, 2019 (#109), to which the defendant replied on June 14, 2019 (#112). The motion was argued on November 18, 2019, and submitted on November 26, 2019, when the plaintiff complied with the court’s order to file and serve on the defendant a "blacklined" document showing the differences between the original and amended complaints.
FACTS
In ruling on a motion to strike, the court takes the facts to be those alleged, disregarding legal conclusions and opinions. New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012); see also Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997) (construed in favor of the legal sufficiency of the pleading). In this light, the pleaded essential facts- material facts added by the amended complaint in bold font- are as follows.
The defendant hired the plaintiff on about June 7, 2004. In March of 2012, the defendant promoted the plaintiff to Program Manager. Sometime around 2014, in a meeting with the defendant’s chief executive officer, vice president of services, the director of the plaintiff’s division, and the plaintiff, the defendant’s chief financial officer made a negative comment about women having babies and using leave from employment. The comment insinuated that the officer saw leave taken for having babies "as a burden and a nuisance."
The complaint does not allege the speaker’s words. The court regards "negative," in this context, as an opinion which is not normally considered in determining the legal sufficiency of a pleading. Faulkner v. United Technologies Corp., supra, 240 Conn. 588. The interpretation of pleadings is always a question of law for the court. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). Given the legal importance to the plaintiff’s claim, and the apparent subjective importance to the plaintiff, of the officer’s comment being both negative and "insinuating he saw it as a burden and a nuisance," these allegations must be examined with care. Because the court, in ruling on a motion to strike, construes the complaint in the manner most favorable to sustaining its legal sufficiency; New London County Mutual Ins. Co. v. Nantes, supra; the court includes "negative" as an adjective modifying "comment" in this statement of facts despite the fact that, hypothetically, a comment such as "we’ve had to make some adjustments because of staff taking maternity leave" would not, by itself, be negative.
The allegation that the chief financial officer’s negative comment- whatever it was- "insinuat[ed that] he saw [leave taken for having babies] as a burden and a nuisance" could be construed as alleging that the plaintiff subjectively inferred that meaning; i.e., that the allegation is the plaintiff’s opinion of the comment’s meaning. The court rejects that construction because, again, the complaint must be construed in the manner most favorable to its legal sufficiency. So construed, the plaintiff alleges, in essence, the chief financial officer’s state of mind in making the comment. An allegation of state of mind is an allegation of fact. (The amended complaint does not allege that the officer was stating company policy.)
Around January 4, 2017, the plaintiff learned she was pregnant with her first child. Prior to her pregnancy, the plaintiff had no issues at work, had generally received positive performance reviews, and was considered by the defendant to be a good and valuable employee . Around March of 2017, the plaintiff notified the defendant of her pregnancy. In particular, she informed her direct supervisor of her pregnancy and discussed her intention to take three months off after the baby was born and then to return to work on a part-time basis for some period of time. The defendant then had a policy allowing employees the option of returning to work part time (twenty-four hours per week) for up to four months after giving birth. In May of 2017, the plaintiff learned that there was something wrong with her unborn child- a condition later determined to be duodenal atresia, which required surgery shortly after the baby was born. The plaintiff informed her supervisor of the baby’s diagnosis and the need for post-birth surgery.
"[C]onsidered by the defendant to be a good and valuable employee" is included because it is an allegation of the state of mind of the defendant’s pertinent executives, not an impermissible opinion of the pleader. The court does not here repeat the allegation which follows, i.e., "as demonstrated by her promotion in 2012 to a management position with the defendant" because the word "demonstrated" shows it is evidentiary in nature. See Practice Book § 10-1 (statement of material facts not to include evidence by which they are to be proven).
The plaintiff gave birth to her baby girl ten weeks early, on June 28, 2017. The plaintiff’s daughter was immediately placed on a feeding tube/catheter, had the needed surgery on July 13, 2017, and remained in the hospital on a feeding tube through September 16, 2017. In early September 2017, the plaintiff contacted the defendant’s Human Resources (HR) office and spoke with the defendant’s HR director about her options for returning to work. The HR director encouraged the plaintiff to return to work at the end of the three months of leave and then to use the federal Family Medical Leave Act (FMLA) as needed for the plaintiff’s daughter’s care. The plaintiff submitted FMLA paperwork from her doctor to the defendant and was approved by the defendant for leave under the FMLA. The plaintiff returned to work on September 22, 2017.
Before the plaintiff returned from maternity leave, the defendant scrutinized her work and work performance in order to generate a pretextual basis for terminating her employment. Defendant’s true motive in doing so was to terminate the plaintiff because of her pregnancy, childbirth, and use of leave in connection with pregnancy or childbirth.
The amended complaint alleges that the defendant "over-scrutiniz[ed]" her work. The prefix "over-," in this context, is an opinion not considered in analyzing the legal sufficiency of the pleading. See Faulkner v. United Technologies Corp., supra, 240 Conn. 588. The plaintiff is required to plead "circumstances giving rise to an inference of discrimination"; Phadnis v. Great Expression Dental Centers of Conn., P.C., 170 Conn.App. 79, 87-88, 153 A.3d 687 (2017); and what is alleged is construed in favor of the sufficiency of the pleading. New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747.
Upon her return to work, the plaintiff was called into a meeting with the defendant’s chief operating officer, the defendant’s HR director, and the plaintiff’s immediate supervisor, where she was told unspecified "things came to light" while she was on maternity leave and that she was being suspended pending an investigation. Among the issues said officers of the defendant claimed had come to light was that the plaintiff had violated the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) by leaving client files out on her desk or on shelves, in her office . All the issues the defendant claimed to have uncovered, including the alleged HIPAA violation, were false and pretextual. The plaintiff had openly stored files on her desk or on shelves in her office, in full view of all of her supervisors, for the entire duration of her tenure as program manager and had never been told there was anything wrong with doing so .
The amended complaint does not specify that this leave was maternity leave, but the court infers from the context that that is what she alleges. See Boone v. William W. Backus Hospital, supra, 272 Conn. 559 (interpretation of pleadings is a question of law for the court).
The plaintiff alleges that the defendant accused her of violating "HIPPA," a common, imprecise acronym for the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No . 104-91, 110 Stat. 1936.
The court omits the new allegation in paragraph 27 of the amended complaint that, essentially, the plaintiff and her direct supervisor discussed the lack of storage space for client files, implicitly without a claim the plaintiff or the defendant was violating HIPAA, because it is evidentiary in nature. See Practice Book § 10-1.
On October 11, 2017, in a meeting with the defendant’s chief operating officer and chief financial officer, the plaintiff’s employment was terminated. The defendant terminated the plaintiff’s employment because of her pregnancy.
The plaintiff alleges that she received from the Connecticut Commission on Human Rights and Opportunities a release of jurisdiction to file count one of the amended complaint. There being no motion to dismiss, the court assumes that the defendant does not contest that fact.
DISCUSSION
Count One
Count one of the amended complaint alleges pregnancy discrimination in violation of General Statutes § 46a-60. "It shall be a discriminatory practice in violation of this section: ... [for an employer, by the employer or the employer’s agent: (A) To terminate a woman’s employment because of her pregnancy ..." General Statutes § 46a-60(b)(7). Section 46a-60(a)(1), as amended by P.A. 17-118, provides, "[a]s used in this section: (1) ‘[p]regnancy’ means pregnancy, childbirth or a related condition, including, but not limited to, lactation ..." Section 46a-60 is construed liberally to accomplish its purpose of reducing employment discrimination. Cimino v. Pratt & Whitney, Superior Court, judicial district of New Haven, Docket No. CV-07-5011977 (November 29, 2007, Bellis, J.) (44 Conn.L.Rptr. 621).
Without prejudice to any claim by the plaintiff under other provisions of subsection (b)(7) of General Statutes § 46a-60, that subsection, as amended by P.A. 17-118, provides in what appears to the court to be the pertinent parts, "It shall be a discriminatory practice in violation of this section: ... (7) For an employer, by the employer or the employer’s agent: (A) To terminate a woman’s employment because of her pregnancy; ... (D) to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so; ... (F) to discriminate against an employee ... on the basis of her pregnancy in the terms or conditions of her employment; ... and (K) to retaliate against an employee in the terms, conditions or privileges of her employment based upon such employee’s request for a reasonable accommodation ..."
"[W]e review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008). "These claims of ... discrimination are subject to the familiar McDonnell Douglas burden-shifting standard." Green v. Cellco Partnership, 218 F.Supp.3d 157, 162 (D.Conn. 2016); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas the employee must first establish a prima facie case of discrimination. Phadnis v. Great Expression Dental Centers of Connecticut, P.C., 170 Conn.App. 79, 87, 153 A.3d 687 (2017). "The burden of establishing a prima facie case [of discrimination] is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder. The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff’s favor." (Citation omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 513, 43 A.3d 69 (2012). "In order to establish a prima facie case, the [plaintiff] must prove that: (1) [she] is in the protected class; (2) [she] was qualified for the position; (3) [she] suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination." Phadnis v. Great Expression Dental Centers of Connecticut, P.C., supra, 170 Conn.App. 87-88.
As to count one, the present motion asserts that the plaintiff has failed to plead sufficient facts from which an inference of pregnancy discrimination can properly, that is, legally be drawn. The court disagrees.
If the fourth Phadnis element only required a plaintiff to allege the plaintiff’s subjective inference, the court, being unable to weigh facts in ruling on a motion to strike; Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013); would have to accept that assertion and, unless no "circumstances" were alleged at all, the fourth element would always have to be found sufficiently alleged.
The burden on a plaintiff claiming employment discrimination is not onerous. Bucalo v. Shelter Island Union Free School Dist., 691 F.3d 119, 128 (2d Cir. 2012). Of course, involuntary termination of employment by one’s employer is an adverse employment action. Amato v. Hearst Corp., 149 Conn.App. 774, 781, 89 A.3d 977 (2014). "After plausibly alleging that the employer took adverse action against her, a plaintiff must allege facts supporting her claim that ... [status] was a motivating factor in the employment decision. [T]he ultimate issue in an employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an impermissible reason, i.e., a discriminatory reason. A plaintiff may meet this burden through direct evidence of intent to discriminate, or by indirectly showing circumstances giving rise to an inference of discrimination." (Citations omitted; internal quotation marks omitted.) Stinnett v. Delta Air Lines, Inc., 278 F.Supp.3d 599, 611 (E.D.N.Y. 2017).
The defendant challenges the amended complaint for its failure to allege that similarly situated employees who were not pregnant were treated more favorably than the plaintiff was treated. Although this court did make that point in striking the plaintiff’s original complaint, that ruling cannot reasonably be read as concluding that such an allegation is required: no such comparison need be alleged. See Phadnis v. Great Expression Dental Ctrs. of CT, P.C., supra, 170 Conn.App. 94-95; see also Taylor v. Yale New Haven Hospital, Docket No. 3:16-cv-01754 (SRU) at *26 (D.Conn. Mar. 26, 2019) and Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (alleged facts that indirectly show discrimination by giving rise to a plausible inference of discrimination can state a claim). A plaintiff may allege any facts which, reasonably construed, show circumstances from which discrimination may reasonably be inferred. Stinnett v. Delta Air Lines, Inc., supra, 278 F.Supp.3d 611-12 (a mosaic revealing intentional discrimination will suffice). Temporal proximity between an employee’s pregnancy, childbirth or related medical condition and termination can support an inference of discrimination based on pregnancy. Boyne v. Town & Country Pediatrics & Family Medicine, Docket No. 3:15-CV-1455 (MPS), 2017 WL 507212, at *4 (D.Conn. February 7, 2017). The interpretation of pleadings is a question of law for the court. Boone v. William W. Backus Hospital, supra.
Count one of the amended complaint alleges, in its pertinent essence, that, until she became pregnant, the plaintiff had no "issues" at work, had generally received positive performance reviews and a promotion to a managerial position, and was considered by the defendant to be a good and valuable employee. While she was on maternity leave, one or more of the defendant’s agents scrutinized her work and work performance looking for a reason to terminate her employment other than the true reason- her pregnancy, childbirth, and related use of leave. Upon her return to work, the plaintiff was told that unspecified "things came to light" while she was on maternity leave, including that she had violated HIPAA by leaving client files on her desk or on shelves in her office. The allegation of a HIPAA violation was false and pretextual: the plaintiff had always kept client files that way, in full view of all of her supervisors, and had never been told there was anything wrong with doing so. She was suspended pending an investigation and, within a few weeks, her employment was terminated.
Bearing in mind that the plaintiff need only allege facts showing a prima facie case of employment discrimination, and the defendant not disputing that count one alleges the first three Phadnis elements, the court finds that facts meeting the fourth Phadnis element are alleged: count one alleges a prima facie claim for pregnancy discrimination. The movant’s claim that other allegations in the amended complaint "weigh against" an inference of discrimination ignores the principles that a pleading is to be construed reasonably in favor of its sufficiency and that the court is not to weigh facts in the process.
Count Two
Count two alleges interference with the plaintiff’s rights under the federal FMLA. Count two adds the following facts to those stated in the "Facts" section of this memorandum:
The plaintiff was an eligible employee under the FMLA and entitled to FMLA leave. She applied for and utilized leave under the FMLA. The defendant interfered with her right to be reinstated to her position, or an equivalent position, following that leave by immediately suspending her employment upon her return from that leave and then terminating her employment.
The FMLA, 29 U.S.C. § 2601 et seq., provides employees with the right to take limited leave from employment under certain circumstances, including care of their children [29 U.S.C. § 2601(b)(2)]; protects them from termination of employment motivated by the employee’s taking FMLA leave [29 U.S.C. § 2601(b)(4)]; and requires employers to reinstate the employee to his or her former position at the end of FMLA leave, unless the employee is unable to perform an essential function of that position. Evarts v. Quinnipiac University, United States District Court, Docket No. 3:15-CV-1509 (CSH) (D.Conn. October 4, 2018).
To state a prima facie claim of interference by an employer with an employee’s FMLA rights, the plaintiff must allege facts showing that (1) she is an eligible employee under the FMLA; (2) the defendant is an employer to which the FMLA applies; (3) the plaintiff was entitled to leave under the FMLA; (4) she gave notice to the defendant of her intention to take such leave; and (5) the defendant denied her request for leave. Di Giovanna v. Beth Israel Medical Ctr., 6551 F.Supp.2d 193, 199 (S.D.N.Y. 2009). Where a claim for interference with rights under the FMLA lies, the employer’s intent does not matter. See Cendant Corp. v. Commissioner of Labor, 276 Conn. 16, 28, 883 A.2d 789 (2005).
The defendant argues that count two is legally insufficient because there is no allegation that the defendant denied the plaintiff any leave to which she was entitled under the FMLA. The court agrees. The plaintiff admits that she applied for and "utilized" leave under the FMLA. Indeed, count two alleges that she was suspended, and eventually fired, after she returned from FMLA leave.
A necessary inference is that the FMLA leave the plaintiff alleges she "utilized" was while she was employed by the defendant. See Boone v. William W. Backus Hospital, supra .
FMLA rights depend on the plaintiff being an eligible employee entitled to FMLA leave from an employer to which the plaintiff gives notice of intended FMLA leave. The plaintiff does not allege that she applied for a leave under FMLA which was denied to her. The plaintiff submits no authority for the proposition that termination of employment is, per se, interference with the terminated employee’s rights under the FMLA when FMLA leave has been applied for and utilized. Count two is legally insufficient because termination of the plaintiff’s employment ended her FMLA rights arising from that employment.
Count Three
Count three is for retaliation against the plaintiff for exercising her rights under the FMLA. Count three incorporates the facts summarized in the "Facts" section above and adds the following:
The title of count three is "Retaliation Pursuant to the Family Medical Leave Act[, ] 29 U.S.C. § 2612 et seq." The plaintiff cites no specific statute on which count three is based, as required by Practice Book § 10-3(a), but the defendant makes no challenge on that ground.
The plaintiff was an eligible employee under the FMLA and entitled to FMLA leave. She requested and utilized medical leave under the FMLA. The defendant terminated her employment due to her exercise of her right to take a leave of absence under the FMLA.
"[A]n FMLA retaliation claim is analyzed under the McDonnell Douglas burden shifting framework, requiring the [p]laintiff first to establish a prima facie case ... In order to make out a prima facie case, [the Plaintiff] must establish that: 1) [she] exercised rights protected under the FMLA; 2) [she] was qualified for [her] position; 3) [she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent." (Citation omitted; internal quotation marks omitted.) Colon v. Fashion Inst. of Tech. (State Univ. of New York), 983 F.Supp.2d 277, 287 (S.D.N.Y. 2013); see Evarts v. Quinnipiac University, supra (retaliation claim requires plaintiff to show that employer retaliated ... for plaintiff’s exercise of FMLA rights); Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d 158, 166 (2d Cir. 2017).
Retaliatory intent "can be established [by inference] when there is a basis for a jury to conclude that a causal connection exists between the plaintiff’s protected activity and the adverse action taken by the employer ... At the prima facie stage, temporal proximity between the exercise of FMLA benefits and an adverse employment action may give rise to a retaliatory inference, as will employer penalties for absences which were permitted by FMLA." (Citations omitted; internal quotation marks omitted.) Jordan v. County of Chemung, 264 F.Supp.3d 497, 507 (W.D.N.Y. 2017), appeal withdrawn, No. 17-3183. "Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Colon v. Fashion Inst. of Tech. (State Univ. of New York), supra, 983 F.Supp.2d 287.
The defendant does not dispute that count three alleges facts showing the first three elements of an FMLA retaliation claim. The defendant claims that count three fails to state facts showing the presence of the fourth Colon element, i.e., circumstances giving rise to an inference of retaliation by the defendant for the plaintiff’s exercise of her FMLA rights. To the facts alleged in count one, count three adds the fact that the defendant terminated the plaintiff’s employment because she took FMLA leave- an allegation of the defendant’s corporate intent, i.e., the state of mind of the officers acting for the defendant. The circumstances of the termination of the plaintiff are in the facts incorporated from count one and summarized in the court’s analysis of count two, above: in sum, the plaintiff alleges circumstances from which a retaliatory termination can reasonably be inferred. Bearing in mind that the court must construe the plaintiff’s allegations in favor of their sufficiency, the temporal proximity of her suspension and termination to her leave permits an inference of retaliatory intent. See Offor v. Mercy Med. Ctr., 676 Fed.Appx. 51, 54 (2d Cir. 2017). The plaintiff’s admissions that the defendant’s HR director encouraged her to use FMLA leave as needed and that her application for such leave was approved do not preclude the plaintiff from making out a claim for retaliation for taking FMLA leave. Nor does the allegation in count one that the plaintiff was terminated because of her pregnancy prevent the court from concluding that count three, which alleges she was terminated for exercising her FMLA leave rights, is insufficient. The plaintiff is entitled to claim that she was terminated both for having become pregnant and for taking FMLA leave. In any event, alternative pleading is permitted. Stein v. Horton, 99 Conn.App. 477, 485, 914 A.2d 606 (2007); see also Vidiaki, LLC v. Just Breakfast and Things!!!, LLC, 133 Conn.App. 1, 24, 33 A.3d 848 (2012) (even inconsistent pleading is permitted).
In concluding that count three states a cause of action, the court disregards the 2014 "negative comment" by the defendant’s chief financial officer about women having babies.
For the foregoing reasons, motion to strike #107 is granted as to count two but denied as to counts one and three.