Kouromihelakis v. Hartford Fire Ins. Co.

48 F.Supp.3d 175

30 A.D. Cases 1349

Michael KOUROMIHELAKIS, Plaintiff

v.HARTFORD FIRE INSURANCE COMPANY, Defendant.

Civil No. 3:13cv888AWT.

United States District Court, D. Connecticut.

Signed Sept. 29, 2014.

Anthony J. Pantuso, III, Quinn Law Firm, LLC, Milford, CT, for Plaintiff.

Miguel A. Escalera, Jr., Sheldon D. Myers, Kainen, Escalera & McHale, PC, Hartford, CT, for Defendant.

RULING ON MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY PROCEEDINGS AND COMPEL ARBITRATION

ALVIN W. THOMPSON, District Judge.

Plaintiff Michael Kouromihelakis brings this six-count action against defendant Hartford Fire Insurance Company. Count One alleges willful interference in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”); Count Two alleges retaliation in violation of the FMLA; Count Three alleges discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”); Count Four alleges retaliation in violation of the ADA; Count Five alleges retaliation in violation of the Connecticut Fair Employment Practices Act, Conn. Gen.Stat. § 46a–58 et seq. (“CFEPA”); and Count Six alleges common law defamation. The defendant has moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Count Three of the Complaint. In addition, the defendant has moved, pursuant to Rule 12(b)(1) and the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), to dismiss Counts One, Two, Four, Five and Six of the Complaint, or in the alternative, to compel arbitration and stay this action pending arbitration. For the reasons set forth below, the motion is being granted in part and denied in part.

I. Factual Allegations

“The complaint, which [the court] must accept as true for purposes of testing its sufficiency, alleges the following circumstances.” Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.1997).

The plaintiff was employed by the defendant as a Regional Sales Consultant. The plaintiff's job performance was excellent. As a Regional Sales Consultant, the plaintiff's regular work hours were 9:00 a.m. to 6:00 p.m., with a one-hour lunch break usually taken from 1:00 p.m. to 2:00 p.m. The plaintiff was an exempt employee, and was paid a salary rather than paid on an hourly basis. As an exempt employee, the defendant's written tardiness policy did not apply to the plaintiff.

In November 2008, the plaintiff's father suffered a debilitating stroke, and thus suffers from a “serious health condition” as defined by the FMLA and a “disability” as defined by the ADA and CFEPA. The plaintiff regularly was required to assist in the care of his disabled father, and as a result, the plaintiff periodically was unable to report to work by 9:00 a.m.

The plaintiff made the defendant and his immediate supervisor, Cole Phillips (“Phillips”), aware of his father's disability and the fact that he periodically would be unable to report to work by 9:00 a.m. because of his duties in caring for his disabled father. On several occasions, the plaintiff's superiors, including but not limited to Phillips, issued written warnings to him for violations of the defendant's tardiness policy that were directly related to the plaintiff's duties for caring for his disabled father. On more than one occasion, the plaintiff made requests to Phillips to change his hours under the defendant's “flex time” policy in order to accommodate his duties in caring for his disabled father. Those requests were denied.

On or about January 4, 2012, the plaintiff was approved to take four hours of Personal Time Off (“PTO”) in order to care for his disabled father. The plaintiff arrived for work that day at 1:26 p.m. However, Phillips considered the plaintiff to have been late. As a result of this tardiness, the defendant terminated the plaintiff's employment.

On or about July 6, 2012, the plaintiff filed a charge of discrimination under the ADA and CFEPA with the Connecticut Commission on Human Rights and Opportunities (“CHRO”). On or about November 16, 2012, the CHRO retained the plaintiff's complaint for a full investigation.

Approximately three weeks later, on or about December 6, 2012,¹ the defendant, through Ian Veitzer, falsely accused the plaintiff of having forged a document in January 2011. On or about December 14, 2012, the defendant filed an amendment to the plaintiff's Form U5 with the Financial Industry Regulatory Authority (“FINRA”), falsely claiming that the plaintiff had engaged in fraud.

II. Legal Standard

When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff.See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although a complaint “does not need detailed factual allegations, a plaintiff's obligation to provide the grounds'? of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”)). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (internal quotation marks omitted)). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). However, the plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “The function of a motion to dismiss is ‘merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ ” Mytych v. May Dep't Stores Co., 34 F.Supp.2d 130, 131 (D.Conn.1999) (quoting Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984) ). “The issue [on a motion to dismiss] is not whether [the] plaintiff will prevail, but whether he is entitled to offer evidence to support his claims.” United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. 1683 ).

In its review of a motion to dismiss for failure to state a claim, the court may consider “only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken.” Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.1993).

“A [claim] is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the [claim].” Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996). On a Rule 12(b)(1) motion to dismiss, the party asserting subject matter jurisdiction “bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). When reviewing a motion to dismiss for lack of subject matter jurisdiction, the court may consider evidence outside the pleadings. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).

III. Discussion

A. Count Three: Discrimination in Violation of the ADA

The plaintiff alleges in Count Three that the defendant discriminated against him in violation of the ADA “because of the known disability of his father.” (Compl., Doc. No. 1, ¶ 38.)

The ADA makes it unlawful for a covered employer to “discriminate against a qualified individual on the basis of disability....” 42 U.S.C. § 12112(a). The term “discrimination,” as used under the ADA, is defined to include what courts have described as “associational discrimination” or “association discrimination.” Specifically, the ADA prohibits employers from taking adverse employment action “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association [.]” 42 U.S.C. § 12112(b)(4). “The Second Circuit has not had occasion to construe the associational discrimination provision of the ADA.” Dessources v. Am. Conference Inst., No. 12 Civ. 8105(PKC), 2013 WL 2099251, *3 (S.D.N.Y. May 15, 2013). However, courts in this Circuit have relied on the Tenth Circuit's decision in Den Hartog v. Wasatch Acad., 129 F.3d 1076 (10th Cir.1997) and the Fourth Circuit's decision in Tyndall v. Nat'l Educ. Ctrs. Inc., 31 F.3d 209 (4th Cir.1994). See, e.g., Dollinger v. State Ins. Fund, 44 F.Supp.2d 467, 480 (N.D.N.Y.1999). In Den Hartog, the Tenth Circuit stated that:

[T]o establish a prima facie case of “association discrimination” under [the] ADA ... a plaintiff must demonstrate ... [that] (1) the plaintiff was “qualified” for the job at the time of the adverse employment action; (2) the plaintiff was subjected to adverse employment action; (3) the plaintiff was known by his employer at the time to have a relative or associate with a disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision.

129 F.3d at 1085. The fourth element was elaborated on by the Seventh Circuit in Larimer v. Int'l Bus. Machines Corp., 370 F.3d 698 (7th Cir.2004). In Larimer, the Seventh Circuit identified three types of situations falling within the association provision of the ADA: “expense,” “disability by association,” and “distraction.” See id., 370 F.3d at 700.²

Relevant to this motion is the third...