MOORE v. MARA

a continuing employment context'. . . ." Kunajukr v. Lawrence Mem'l Hosp., Inc., No. 3:05-CV-1813 (JCH), 2009 WL 651984, at *27 (D. Conn. Jan. 12, 2009) (quoting Perodeau, 259 Conn. at 762). In fact, "[n]egligent infliction of emotional distress in the employment context arises only where it is `based upon unreasonable conduct of the defendant in the termination process.'" Parsons v. United Tech. Corp., 243 Conn. 66, 88-89 (1997) (emphasis added) (internal citation omitted); see also Kunajukr, 2009 WL 651984, at *27 ("Claims may be brought for negligent infliction of emotional distress for conduct occurring during an employment termination."). The plaintiffs have not alleged that their employment was terminated. Accordingly, the motion to dismiss is being granted with respect to the plaintiffs' negligent infliction of emotional distress claim.

D. Intentional Infliction of Emotional Distress

In order to establish liability of a defendant for intentional infliction of emotional distress under Connecticut law, a plaintiff must show:

(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.

Appleton v. Bd. of Educ., 254 Conn. 205, 210 (2000) (internal quotation marks omitted). To be liable for intentional infliction of emotional distress, a defendant's conduct must "exceed[] all bounds usually tolerated by decent society." Id. (internal quotation marks omitted). Routine employment actions, even if made with improper motivations, do not constitute extreme or outrageous behavior. See Adams v. Hartford Courant, Tribune Co., No. Civ. 3-03CV-0477 (JCH), 2004 WL 1091728, at *4 (D. Conn. May 14, 2004); see also Perodeau v. City of Hartford, 259 Conn. 729, 757 (2002) (noting that individuals in the workplace should expect to be subject to "decisions . . . involving transfer, demotion, promotion, and compensation," as well as "workplace gossip, rivalry, personality conflicts," and similar annoyances).

Even conduct that is unlawful under Title VII does not necessarily arise to the level of severity and outrageousness that would support liability for intentional infliction of emotional distress. See, e.g., Robinson v. City of New Haven, 578 F. Supp. 2d 385, 391 (D. Conn. 2008); Pascal v. Storage Tech. Corp., 152 F. Supp. 2d 191, 214 (D. Conn. 2001). Whether a defendant's conduct is sufficiently severe as to satisfy the "extreme and outrageous" element is initially a question for the court to determine. See Appleton, 254 Conn. at 210.

In this case, Moore alleges that she was discriminatorily disciplined after a dispute with a white co-worker, including being forced to undergo a psychological evaluation; being dicriminatorily reassigned; being notified of the availability of a supervisory position after a white employee with less seniority had already been appointed to the position; and being micromanaged; and that her input at work was ignored for discriminatory reasons. Ayers alleges that Hadley did not allow him to seek medical attention after he injured his spine on the job, that he was discriminatorily denied an extension of light duty despite his doctor's recommendation that it be continued, that he was denied reassignment to a position in which he would be less likely to be injured, that he was forced to work overtime despite his doctor's recommendation that he work at most eight hours a day, and that he was denied the opportunity to return to work in a timely manner. Taking all facts alleged as true and drawing all inferences in favor of the plaintiffs, the plaintiffs have failed to allege conduct that was extreme and outrageous, with the exception of Ayers's claim against Hadley for denying him the opportunity to seek medical attention for an injury to his spine when he needed it. See, e.g., White v. Martin, 23 F. Supp. 2d 203, 208 (D. Conn. 1998), aff'd, 198 F.3d 235 (2d Cir. 1999) (holding that an employer's alleged gender discrimination, including denial of a promotion, discipline, and harassment, was not extreme or outrageous conduct); DeLeon v. Little, 981 F. Supp. 728, 738 n. 8 (D. Conn. 1997) (holding that a supervisor's conduct was not sufficiently outrageous where the supervisor's "alleged outrageous conduct include[d] her orders to purchase illegal drugs, . . . threats to terminate Plaintiff's employment and replace her with an individual of another race, implementation of discriminatory sick time policies, monitoring of attendance at work, and repeated degrading and humiliating criticism of Plaintiff in the presence of others"); cf. Berry v. Loiseau, 223 Conn. 786, 793 (1992) (affirming judgment on claim for intentional infliction of emotional distress where the "jury could reasonably have found" that "[d]uring the course of the plaintiff's employment . . . he was subjected to repeated physical abuse[,]. including being punched and choked.").

Accordingly, the motion to dismiss is being granted with respect to the intentional infliction of emotional distress claim, except with respect to Ayers's claim against Hadley for denying him the opportunity to seek medical treatment for an injury to his spine when he needed it.

Ayers's claim against Hadley for intentional infliction of emotional distress is being dismissed as untimely, however. See infra Part III.H.

E. Certain Individual Defendants' Personal Involvement re the § 1983 Claims

The defendants argue that the plaintiffs have failed to allege personal involvement by several of the individual defendants and that the § 1983 claims should therefore be dismissed with respect to these defendants. Specifically, neither Moore nor Ayers names defendants Mara, Flowers-Murphy, Rayford, or Gavey in any of the factual allegations in their complaint. "In a § 1983 suit . . . the term `supervisory liability' is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. . . . [P]urpose rather than knowledge is required . . . for an official charged with violations arising from his or her superintendant responsibilities." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009). Although in their memorandum the plaintiffs list a variety of ways in which the personal involvement of a supervisor may be established and cite a number of paragraphs in the complaint in which they set forth factual allegations against various defendants, none of those paragraphs name or set forth facts that support an inference that any of Mara, Flowers-Murphy, Rayford, and Gavey were involved in the conduct on which the complaint is based. Accordingly, both plaintiffs' § 1983 claims are being dismissed with respect to these defendants.

The court notes that in Davis I, in which the allegations setting forth the claims of both Moore and Ayers are substantially similar their allegations in the present case, defendants Mara, Flowers-Murphy, Rayford, and Gavey are named by plaintiffs other than Moore and Ayers; in Davis I, they are not named in the counts brought by either Moore or Ayers. Perez is also named only by plaintiffs other than Moore and Ayers in Davis I, although Ayers mentions her in his supporting factual allegations.

In addition, Moore does not allege or set forth facts that support an inference of personal involvement by any of Perez, Hadley, and Burrows, and Ayers does not allege or set forth facts that support an inference of personal involvement by any of Colonghi, Unkelbach, and Fowler. Accordingly, Moore's § 1983 claims are being dismissed with respect to Perez, Hadley, and Burrows, and Ayers's § 1983 claims are being dismissed with respect to Colonghi, Unkelbach, and Fowler.

F. Timeliness of Title VII Claims

The defendants argue that the plaintiffs' Title VII claims must be dismissed because although the plaintiffs each received a right to sue notice, as required by Title VII, see 42 U.S.C. § 2000e-5(f)(1), they received these letters in 2004, and the present suit was brought in 2008, outside the 90-day time limit required by statute. See id.

The plaintiffs allege in the Corrected Second Amended Complaint that Moore's right to sue letter was dated July 14, 2004 and Ayers's right to sue letter was dated May 19, 2004.

The plaintiffs respond that this case presents extraordinary circumstances in which equitable tolling should apply, because the plaintiffs filed timely claims that were later dismissed through "no fault of their own and only because of procedural technical infirmities in their prior complaints." (Pl.'s Mot. [sic] Opp'n to Def.'s Mot. Dismiss Corrected Second Am. Compl. Filed by Regina Moore and Michael Ayers (Doc. No. 72), at 11.)

"A Title VII action must be brought within 90 days of receipt of a[] . . . right-to-sue letter. In instances where a complaint is timely filed and later dismissed, the timely filing of the complaint does not `toll' or suspend the 90-day limitations period." Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993) (citation omitted).

Equitable tolling is generally considered appropriate "where the plaintiff actively pursued judicial remedies but filed a defective pleading during the specified time period," where plaintiff was unaware of his or her cause of action due to misleading conduct of the defendant, or where a plaintiff's medical condition or mental impairment prevented her from proceeding in a timely fashion[.] When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has "acted with reasonable diligence during the time period she seeks to have tolled," and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.

Zerilli-Edelglass v. N.Y. City Trans. Authority, 333 F.3d 74, 80-81 (2d Cir. 2003) (citations omitted). Equitable tolling can apply to deadlines for filing administrative charges, see, e.g.,id., or to the deadlines for filing an action in court, see, e.g., Washington v. White, 231 F. Supp. 2d 71, 75 (D.D.C. 2002). However, where a complaint has been filed and then dismissed, as to some defendants, as the result of a ruling on a motion to dismiss that was not opposed, and as to the remaining two defendants, because of failure to prosecute, equitable tolling is not appropriate under the standard set forth inZerilli-Edelglass. See Sain v. Am. Red Cross, 233 F. Supp. 2d 923, 928 (S.D. Ohio 2002) (noting that where a previous complaint has been dismissed without prejudice, the 90-day time period is not subject to equitable tolling, because the plaintiff's "failure to comply with the filing requirement was the fault of neither the defendant nor the district court."); cf. White, 231 F. Supp. 2d at 75-76 (applying equitable tolling principles to deny motion to dismiss where the plaintiff submitted a complaint with a application for leave to proceed in forma pauperis within 90 days of receiving a right to sue letter but the application was not granted, and the complaint accordingly not accepted for filing, until 114 days after receipt of the right to sue letter). Therefore, the 90 days continued to run after the complaint was filed and it expired on October 12, 2004 with respect to Moore and August 17, 2004 with respect to Ayers. Accordingly, the plaintiffs' Title VII claims are untimely and are being dismissed. G. Eleventh Amendment Immunity

The defendants also argue that Moore failed to exhaust administrative remedies with respect to her new allegations that were not present in the original suit. The plaintiffs respond that these allegations should be deemed exhausted because they are reasonably related to those previously presented to the agency. However, the court does not reach this issue because the previously-presented claims are being dismissed as untimely. Accordingly, plaintiff Moore's newly asserted claims cannot be asserted in reliance upon the 2004 release of jurisdiction and must also be dismissed.

The defendants argue that the plaintiffs' § 1983 claims against DCF and any claims against the individual defendants in their official capacities are barred by the Eleventh Amendment to the United States Constitution. Because the Eleventh Amendment bars these claims, they are being dismissed. See, e.g., Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (finding that the plaintiff's § 1983 claim against state agency is barred by the Eleventh Amendment); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) ("The Eleventh Amendment bars the award of money damages against state officials in their official capacities."); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either a State nor its officials acting in their official capacities are `persons' under § 1983.").

H. Timeliness of § 1983 and Tort Claims

The defendants argue that the plaintiffs' § 1983 and tort claims are barred by the statute of limitations. The plaintiffs respond that the statute of limitations has been tolled because they previously alleged the same claims in prior actions that were dismissed on procedural grounds.

"If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service . . . or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated . . . for any matter of form[,] . . . or if a judgment of nonsuit has been rendered[,] . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action. . . ." Conn. Gen. Stat. § 52-592.

In this case, the plaintiffs brought two prior actions involving § 1983 claims. The first was dismissed for lack of jurisdiction and failure to prosecute, as well as pursuant to Rule 12(b)(6). See supra Part III.A. The second was dismissed for lack of jurisdiction and for insufficiency of service of process.See id. Judgment was entered in the first action on January 3, 2006. However, the plaintiff filed a motion to reopen the case on January 9, 2006. The court denied that motion on June 28, 2006. The second action was filed on March 29, 2007, within one year of June 28, 2006. The third action was filed on December 23, 2008, just one month after November 21, 2008, when the second suit was dismissed.

Although judgment was entered on January 3, 2006, the relevant date for the court's analysis is June 28, 2006 because that is the date of the "determination of the original action." See Waldman v. Jayaraj, 89 Conn. App. 709, 712 (2005) (finding that an action "was determined at the denial of [the plaintiff's] motion to open the judgment").

The relevant statute of limitations here is three years for both the § 1983 and tort claims. See Conn. Gen. Stat. § 52-577;Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) ("In section 1983 actions, the applicable limitations period is found in the general or residual [state] statute [of limitations] for personal injury actions. . . .") (citations omitted) (internal quotation marks omitted).

Ayers and Moore both raised their § 1983 claims in each of the prior actions. When each of the prior actions was dismissed — the first "for want of jurisdiction" and for failure to prosecute, which is substantially similar to entry of a "judgment of nonsuit", and the second "for want of jurisdiction" and "for insufficient service" — they brought new suits alleging violations of § 1983 within one year. Conn. Gen. Stat. § 52-592. Consequently, Connecticut General Statutes § 52-592 operates to toll the statute of limitations with respect to these claims. Accordingly, the plaintiffs' § 1983 claims arising from events alleged to have occurred on or after July 20, 2001 — three years before the first suit was filed — are timely with respect to parties named as defendants in Moore's and Ayers's § 1983 claims in all three actions.

The court notes that Ayers did not name Perez as a defendant in Davis I, although he did mention her in his supporting factual allegations, alleging substantially the same conduct on her part as he does in the present action. See supra note 8. Because the parties did not brief the issue of whether Connecticut General Statutes § 52-592 tolls the statute of limitations with respect to Perez, the court reserves ruling on whether the claims against her are timely and assumes that they are for purposes of deciding this motion.

However, Hadley and Burrows were named as defendants in Davis I and in the present action, but they were not defendants in Davis II. More than one year passed between June 28, 2006, when the motion to reopen was denied in Davis I and December 23, 2008, when this action was filed. Consequently, Ayers's claims against them are not saved by Connecticut General Statutes § 52-592. Thus, Ayers's claims against Hadley and Burrows are timely insofar as the events giving rise to those claims occurred on or after December 23, 2005, three years before the present action was filed. However, the only allegations with respect to Hadley relate to conduct that occurred in November 2001 and the only allegations with respect to Burrows relate to conduct that occurred in August 2002. Accordingly, Ayers's § 1983 claims against Hadley and Burrows are being dismissed.

In addition to the § 1983 claims, Ayers also has brought a tort claim against Hadley for intentional infliction of emotional distress. See supra Part III.D. However, Ayers brought his claim for intentional infliction of emotional distress in the first action and the present action, without bringing it in the second action. The first action was determined on June 28, 2006, and the present action was brought on December 23, 2008, more than one year later. Consequently, this claim is not saved by Connecticut General Statutes § 52-592. See Conn. Gen. Stat. § 52-592 (providing that where timely filed action was not heard on the merits, "the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action. . . .") (emphasis added); Perzanowski v. City of New Britain, 183 Conn. 504, 506 (1981) ("Where two distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it. . . . So long as the pendency of the prior action does not prevent enforcement of the remedy sought in the later action, the pendency of the first action will not toll the statute of limitations for the second action."). Thus, Ayers's intentional infliction of emotional distress claim is timely only if it pertains to events alleged to have taken place on or after December 23, 2005, three years before the present suit was filed. However, Ayers alleges that the events giving rise to this claim occurred in November 2001. Accordingly, Ayers's claim of intentional infliction of emotional distress is untimely and is being dismissed.

I. Qualified Immunity

The defendants contend that they are entitled to qualified immunity. Because the court has determined that the plaintiffs' only otherwise-viable claims are Moore's § 1983 claims with respect to Colonghi, Unkelbach, and Fowler and Ayers's § 1983 claim with respect to Perez, all for events taking place on or after July 20, 2001, the analysis is confined to those claims.

But see supra note 12.

The Supreme Court has set forth a two-part inquiry for resolving whether government officials are entitled to qualified immunity. "[R]esolving . . . qualified immunity claims[,] . . . a court must decide whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional right [and] . . . the court must decide whether the right at issue was `clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808, 815-16 (2009). It is within the court's discretion to decide which of these steps to address first. See id. at 818.

Race discrimination in employment may be actionable under § 1983 and brought by a person who is a Title VII plaintiff "so long as the § 1983 claim is based on a distinct violation of a constitutional right," such as a claim for denial of equal protection. Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). "Most of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of . . . the Equal Protection Clause [under § 1983]."Id. However, "a § 1983 claim, unlike a Title VII claim, can be brought against individuals," Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006), and "a plaintiff pursuing a claimed . . . denial of equal protection under § 1983 must show that the discrimination was intentional." Patterson, 375 F.3d at 226.

Moore has alleged that in August and December of 2007, her work assignment was changed without notice. On the latter occasion she was the only person on her shift who experienced a schedule change. Drawing all inferences in favor of Moore, all three of Colonghi, Unkelbach, and Fowler could have taken part in the discriminatory schedule shifting. She has also alleged that Fowler discriminatorily ignored her input at a meeting in September 2008. In addition, she has alleged that her work performance was scrutinized beyond that of white co-workers, including being singled out by Unkelbach and having her input ignored by Unkelbach and Fowler.

"To state a claim for a hostile work environment in violation of Title VII, a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive-that is [] creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [race]." Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks omitted). In the context of a motion to dismiss under Rule 12(b)(6), "a plaintiff need only plead facts sufficient to support the conclusion that she was faced with harassment [] of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse"; the Second Circuit has "repeatedly cautioned against setting the bar too high in this context." Id. (internal quotation marks omitted).

For purposes of stating a claim of disparate treatment, "[t]he Supreme Court has held . . . that `the requirements for establishing a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)] [do not] apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.'" Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 71 (2d Cir. 2006) (third alteration in original) (quotingSwierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)). Instead, "at the pleading stage in an employment discrimination action a plaintiff must only meet the standard set forth in Fed.R.Civ.P. 8(a), which requires a `short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 71-72 (quoting Swierkiewicz, 534 U.S. at 512); see also Fed.R.Civ.P. 8(a).

In this case, Moore's allegations of racially discriminatory schedule changes are sufficient to survive a motion to dismiss.Cf. Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007) ("The timely allegations made on behalf of [one plaintiff] are limited in scope and therefore might be construed as insufficient to constitute a `materially adverse change' in the terms and conditions of employment were we not required to draw all reasonable inferences on behalf of the plaintiff. . . . [However, her] claims of age discrimination based on certain changes in work station and work shift assignments, although limited, are sufficient to withstand a motion to dismiss under the standard articulated in Swierkiewicz.") (citation omitted). Because this law was clearly established as of August 2007, and Moore makes allegations as to incidents occurring in and after August 2007, the court cannot conclude that the defendants are entitled to qualified immunity with respect to Moore's equal protection claim at this stage.

With respect to Ayers, the defendants argue that he "admits that it was the Workers' Compensation Commissioner . . . (not a defendant here) who `discriminatorily denied' his doctor's recommendation to return him to work," so the defendants should be entitled to qualified immunity with regard to his claim that he was discriminatorily denied the ability to return to work. (Defs.' Mem. Supp. Mot. Dismiss. Corrected 2d Am. Compl. (Doc. No. 66-1), at 20.) However, Ayers also alleges that Perez denied his request to return to work on another occasion. Accordingly, the court cannot conclude that the defendants are entitled to qualified immunity with respect to Ayers's equal protection claim at this stage.

J. Improper Service

The defendants also bring their motion to dismiss under Rules 12(b)(2) and 12(b)(5), arguing that several defendants were improperly served. The case is being dismissed as to some of these defendants on the merits. Accordingly, the court addresses the issue of service only with respect to Colonghi, Unkelbach, and Fowler. The plaintiffs effectively concede that these defendants have not been served. Under Rule 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice or order that service be made within a specified time." Fed.R.Civ.P. 4(m). Accordingly, the plaintiffs shall serve Colonghi, Unkelbach, and Fowler within 30 days. Given that the plaintiffs have been aware of the deficiency in service of process for at least six months, the complaint will be dismissed with prejudice with respect to any of these defendants who has not been properly served within 30 days.

IV. CONCLUSION

For the reasons set forth above, the Defendants' Motion to Dismiss Corrected Second Amended Complaint Filed by Regina Moore and Michael Ayers (Doc. No. 66) is hereby DENIED with respect to (1) Moore's § 1983 claims against Colonghi, Unkelbach, and Fowler for conduct occurring on or after July 20, 2001; and (2) Ayers's § 1983 claims against Perez for conduct occurring on or after July 20, 2001; and GRANTED with respect to all other claims. The plaintiffs shall serve the Corrected Second Amended Complaint on Colonghi, Unkelbach, and Fowler within 30 days or face dismissal with prejudice of the claims against any of those defendants who is not properly served.

It is so ordered.