Cromartie v. Correction

• Court: District Court, D. Connecticut
• Decided: September 14, 2022
• Docket: 3:21-cv-01236
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

AARONP ClaRiOntMifAf RTIE, Civil No. 3:21cv01236 (JBA) v. , September 14, 2022

STATE OF CONNECTICUT DEPARTMENT OF CORDReEfeCnTdIaOnNt,

. RULING ON MOTION TO DISMISS Plaintiff Aaron Cromartie filed this lawsuit against Defendant State of Connecticut Department of Correction (“DOC”), alleging violations of Title VII of the Civil Rights Act of 1 1964, 42 U.S.C. § 2000e, et seq., and Connecticut General Statutes §§ 31-51q. Specifically, Plaintiff brings four counts: (1) retaliation based on protected First Amendment expression in violation of Conn. Gen. Stat. §§ 31-51q; (2) retaliation based on protected exercise of rights under the Connecticut Constitution in violation of Conn. Gen. Stat. §§ 31-51q; (3) racial discrimination in violation of Title VII; and (4) retaliation in violation of Title VII. (Am. Compl. [Doc # 24] ¶ 36-40, p. 7-9.) Defendant now moves to dismiss the Amended Complaint in its entiIr. etyF aucntdse Ar lFleegde. Rd. iCni vth. Pe. A1m2(ebn)(d6e)d a nCdo m12p(lba)i(n1t) . Plaintiff is an African American man who was hired for the position of Warehouse Supervisor for the DOC in Jul y 2020. (Am. Compl. ¶ 7.) As part of the hiring process, Plaintiff 1 Although not included as a separate count, the Amended Complaint also references “Connecticut’s Fair Employmen t Practices Act, §31-51q.” (Am. Compl. ¶ 1.) Plaintiff’s counsel clarified at oral argument that inclusion of this citation was an “oversight”, and that Plaintiff is not pursuing a CFEPA claim. was required to attend and graduate from the DOC training academy, whiIcdh. included a class

on Gang Security administered by Captain Papoosha on August 4, 2020. ( ¶ 9.) During the class, Captain Papoosha mentioned only Black and Latino gangs, and no White gangs, and used the “N” word to reference a comImd. ent made by a gang member, which caused Plaintiff to feel “offended and embarrassed.” ( ¶ 10, 18.) At the end of class, Plaintiff asked Captain Papoosha why no White gangs were mentioned or discussed, observing that “it seems as thouIdg.h the class was disproportionately and heavily geared towards Black and Latino gangs.” ( ¶ 11.) Captain Papoosha replied that there was no need to diIsdc.u ss White gangs because there were not as many White gangs as Black and Latino gangs. ( ¶ 12.) As a result of this conversation, Plaintiff claims that he “reasonably believed that he, and other trainees in the academy, were being required to engage in racially discriminatory treatment of the inmates with whom they would interact, by observing and/or reporting on inmate coIndd. uct based on gang affiliation,” creating a racially discriminatory term of employment. ( ¶ 14.) At the graduation ceremony for the training academy on September 30, 2020, Plaintiff walked across theI ds.tage to receive his certificate and threw up the “Texas Longhorns Hook- Em Horns sign.” ( ¶ 20.) Four weeks later, Captain Papoosha accused him of being a Latin Kings gang member, which Plaintiff refuted by explainIidn.g that he was not Hispanic, a prerequisite for being a member of the Latin Kings. ( ¶ 21-22.) Sometime between September 30 and December 4, Plaintiff was called into Captain Papoosha’s office a second time and was accused of being a member of the Bloods gang, possibly with a Crips affiliation, because his Facebook accouIdn. t showed him wearing red clothing (a color DOC contendeIdd. is a Bloods gang identifier). ( ¶ 23-24.) Plaintiff was also asked if he had any tattoos. ( ¶ 27.) PlaintIidff. vehemently denied the accusation and stated that he had never been a gang member. ( ¶ 25.) On December 4, 2020, Plaintiff was informed that he was being terminated byId C. aptain

Colon, who was “unable to inform Plaintiff of the reasons fo[r] the termination.” ( ¶ 28.) Plaintiff’s letter of termination stated that he was terminated during his working test period for violating an Administrative Directive on Employee ConduIcdt. by engaging in “unprofessional behavior that could reflect negatively on the agency.” ( ¶ 29.) Prior to this, he had not received any warning or discipline rIedg.arding his job performance, and received passes for his 30-, 60-, and 90-day appraisals. ( ¶ 30.) Plaintiff received a DOC discipline routing slip which identified the incident date resulting in termination as September 24, 2020 when a photo of cadets was taken and posted on social media showing Plaintiff displaying a potential SecuriItdy. Risk Group (“SRG”) hand sign identified as associated with the Latin Kings and Bloods. ( ¶ 31.) However, Defendant DOC later confirmed Plaintiff was not terminated for being a gang member because it was not “conclusively determined,” or for performance-related reasons, but instead for unprofesIsdio. nal conduct because the hand sign could be viewed as “possibly being related” to SRGs. ( ¶ 32-33.) Plaintiff alleges that in the two years prior to his termination, only Ido.n e other employee—a Black man—was terminated for displaying a perceived gang sign. ( at ¶ 34.) Plaintiff also states “[u]pon information and belief,” both Hispanic and White DOC officers have bIede. n “similarly accused of being involved in gang affiliation” but are still employed by DOCII. .( Le¶g a3l5 S-t3a6n.)d ard Defendant brings its motion under both Rules 12(b)(6) and (b)(1). “To survive a [12(b)(6)] motion to dismiss, a complaint must contain suSfafricmieiennt tfoa cvt. uUanli mteadt Stetar,t easccepted as true, to state a claim to relief that iAss phlcaruosfitb vl.e I oqnba itls face.” , 678 F.3d 147, 152 (2d Cir. 2012) (quoting , 556 U.S. 662, 678 (2009)). The complaint must be interpreted liberally, all allegations must be accepted as true, and all inferences must Heller v. Consol. Rail Corp. be made in the Cphlaaimntbieffr’ss vfa. Tvoimr.e Warner, Inc. , 331 F. App’x. 766, 767 (2d Cir.

2009) (quoting , 282 F.3d 147, 152 (2d Cir. 2002)). Motions to dismiss “assess the legal feasibility of a complaint” and are not the Oplnatcaer itoo T“aesascahye rths'e P wenesigiohnt oPfl atnh eB edv. vid. eTnecvea wPhhaicrhm m. Inigdhuts b. Let odf.,f ered in support” of the merits. Ryder Energy Distribution Corp. v. Merrill L4y3n2c hF .C Soumpmp.o 3ddit i1e3s 1In, c1.51 (D. Conn. 2019)(quoting , 748 F.2d 774, 779 (2d Cir. 1984)). But a complaint that only “offers ‘labels and conclusions’” or “nakAesdh carsosfte rvt. iIoqnbsa ldevoid of further factual enhancemeBnet”ll wAitlll. nCootr ps.u vr.v Tivweo am mbloytion to dismiss. , 556 U.S. 662, 678 (2009) (quoting , 550 U.S. 544, 555, 557 (2007)). Rather, a compTlawionmt mbluyst plead factual allegations that “raise a right to relieIfd a. bove th e speculative level,” , 550 U.S. at 555, and must be “plausible on its face.” at 570. Motions to dismiss for lack of subject matter jurisdiction are properly granted under Fed. R. Civ. P. 12(b)S(o1u) n"dwkheeepne rth, Ien cc.o vu. rAt &la Bc kAsu ttoh eS asltvaatguet,o Irnyc or constitutional power to adjudicate the case."N owak v. Ironworkers Local 6 Pension Fund., 19 F. Supp. 3d 426, 428 (D. Conn. 2014) (citing , 81 F.3d 1182, 1187 (2d Cir. 1996)). The party invoking subject matter jurisdiction has the burden of proving it by a pAruerpecocnhdioernaen vc.e S cohfo othlme aenv iTdreanncsep,. Saynsd., Itnhce. court should draw all inferences in its favor. , 426 F.3d 635, 638 (2d Cir. 2005). Like a motion to dismiss under 12(b)(6), the function is not to weigh the evidence and determine the likelihood that Plaintiff will prevail, but rather to assess the feasibilSietye oSof uthned kceoempperla, Iinntc .and whether Plaintiff is entitled to offer evidence to support his claims. , 19 F. Supp. 3d at 428. III. Discussion A. Retaliation Under Conn. Gen. Stat. §§ 31-51q

Defendant has moved to dismiss Counts 1 and 2, both brought under Conn. Gen. Stat. §§ 31-51q, for lack of subject matter jurisdiction, claiming both counts are barred by the Eleventh Amendment’s prohibition on private suits against the state in federal court unless 2 the state waives itsc iimtinmguWniitlyl .v. (MDiecfh.’.s DMeepm’t .o Of fS Lta. tine PSuolpicpe. Of Mot. to Dismiss (“Def.’s Mem.”) [Doc. # 27-1] at 5, , 491 U.S. 58, 66 (1989)). Because the DOC is a state agency, and because Connecticut has not waived its sovereign immunity in federal court for claims under thIed s.tatute, cDf.eTfehnudramnat nmda vin. tUaninivs. tohfe Csoen cno.u nts brought under §§ 31-51q must be dismissed. ( at 5); , No. 3:18-CV-1140 (JCH), 2019 WL 1763202, at *7 (D. Conn. Apr. 2 2, 2019) (dismissing Conn. Gen. Stat. §§ 31- 51q claims on Eleventh Amendment grounds). Plaintiff argues that because Count One requires interpretation of a federal issue (Stheee First Amendment), it raises a federal question that confers subject matter jurisdiction. ( Pl.’s Opp. to Def.’s Mot. to Dismiss (“Pl.’s Opp.”) [Doc. #29] at 3.) Plaintiff further reasons that because Count One creates federal question jurisdiction, the Court also has supplemental jurisdiction undeIrd . 28 U.S.C. §1367 over Count 2 beBcraaucseey tvh. eBroea irsd ao f“ cEodmucmaotino nn, ucleus of operative fact.” ( at 4.) Plaintiff urges reliance on 368 F.3d 108 (2d Cir. 2004), which held that there is federalI dq.u estion jurisdiction under §§ 31-51q whenB rita rceeqy uires construing the First Amendment. ( at 3.) Defendant correctly points out that is inapposite because it concerned a municipality, not a state, which meant the Eleventh Amendment was not at issue.

2 The parties agree that federal question jurisdiction exists as to Counts 3 and 4 pursuant to 28 U.S.C. § 1331, because they were brought under Title VII. The Eleventh Amendment states that the “Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." U.S. Const. ameSneed .G XAIR. RTIhSe v “. DDOepC' ti so fa C sotrarte agency entitled to the protection of the Eleventh Amendment.” ., 170 F. Supp. 2d 182, 186 (D. Conn. 2001). While a state may waive its immunity under the Eleventh Amendment, courts may only find waiver when “the state has spoken in the most express language or by such overwhelming iCmoopkli cva. tMiocnInst forsohm, the text as [will] leave no room for any other reasonable construction." Minotti vN. Loe. nCsIVin. k3:97CV773 (AHN), 1998 WL 91066, at * 5 (D. Conn. Feb. 20, 1998) (quoting , 798 F.2d 607, 610-11 (2d Cir. 1986)). The enactment of §§ 31-51q is no manifestation of any immunity waiver by the state from suit under this stSaetue tPea iwn lofewd evr. aDl ecpo'tu ortf, Enmore rcgaenn csyu pSperlevms. e&n Ptaulb j.u Prrisodt.i, ction vitiate the Eleventh Amendment. 172 F. Supp. 3d 568, 578 (D. Conn. 2016) (rejecting the argument that “the court can exercise supplemental jurisdiction over [state] claims even where Eleventh Amendment immunity is not waived” because “’neither pendent jurisdicPteinonnh ourr satn Syt aotteh Secrh b. &as Hiso sopf . jvu. rHisadldicetrimona nmay override the Eleventh Amendment.’”) (quoting , 465 U.S. 89, 121 (1984)). Because Connecticut has not waived immunity as to either cause of action in federal court, bBo.t h CouRnatc 1ia al nDdi sCcoruimnti n2a atrieo nd iUsmndisesre dT fiotlre l aVcIkI of subject matter jurisdiction. Plaintiff’s race discrimination claim has two pieces: allegations of disparate treatment, and allegations of racially tainted termination, where Plaintiff was fired after being accused of gang activity by Captain Papoosha, who harbored racially discriminatory See, e.g.,

stereotypes about black men being more likely to be gang members. ( Am. Compl. ¶ 10-12, 21-25.) Defendant maintains that Plaintiff does not allege any direct evidence of discrimination aIndd. makes insufficient allegations to support an indirect inference of discrimination. ( at 6.) Defendant further disputes the sufficiency of Plaintiff’s disparate treatment allegations on three grounds: allegations “upon information and belief” are “mere speculation;” no specific comparator is identified; and there Iadr.e no allegations that the comparators are “similarly situated in all material respects.” ( at 7-9.) Plaintiff defends allegations on information and belief as proper where information is peculiarly within the knowledge and possession of Defendant anIdd .t hat such statements are not his sole facts upon which plausibility should be determined. ( at 15-16.) At this stage the Court’s focus is on “whether the allegations in the compMlaciDnot ngnievlel pDloauugsliabsle Lsuitptlpeojorht nt ov . tChiety roefd Nuecwed Y porrkim, a facie requirements that arise under ,” 795 F.3d 297, 312 (2d Cr. 2015), meaning Plaintiff must only “plausibly allege that (1) the employer took adverse action against him, and (2) his race, coVleogra, rve. lHigeimonp,s tseeaxd, oUrn nioant iForneael Socrhig. Dini swt as a motivating factor in the employment 3 decision.” ., 801 F.3d 72, 87 (2d Cir. 2015). Plaintiff urges that an inference of racial animus can be drawn in part from the fact that he was terminated when similarly situated Caucasian and Hispanic employees were not. 3 Title VII makes it “unlawful for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). To establish discrimination in violation of Title VII, “a plaintiff must show that he (1) is a member of a protected class; (2) was performing his duties satisfactorily; (G3r)a hwaams dv.i sLcohnagr gIseldan; da nRd.R .that (4) his discharge occurred

under circumstances giving rise to an inference of discrimination on the basis of his membership in the protected class.” , 230 F.3d 34, 38 (2d Cir. 2000). (Am. Compl. ¶ 37, p. 9). However, a disparate treatment claim requires the plaintiff to show that he was “similarly situateBdro iwn na lvl. mDaaitkeirni aAl mre. sInpce.cts to the individuals with whom [he] seeks to compare [himself],” , 756 F.3d 219, 230 (2d Cir. 2014), and “plaintiff must still identify at least one comparator to support a minimal infereSnocsea ovf. dNieswcr iYmorinka Ctiiotyn ;D oetph'te rowf iEsdeu tche motion to dismiss stage would be too easy to bypasGso.”o dine v. Suffolk Cnty. Water Auth. ., 368 F. Supp. 3d 489, 514 (E.D.N.Y. 2019) (quoting , No. 14-CV-4514, 2017 WL 1232504, at *4 (E.D.N.Y. Mar. 31, 2017)). Defendant is correct that Plaintiff’s allegation that he was disparately treated compared with similarly situated comparators is insufficient to show plausibility. While “pleading on information and belief in employment discrimination suits can suffice to meet the relevant plausibility standard when the relevant faOctlisv earr ev . pCairttyi coufl aNrleyw w Yitohrikn the possession, knowledge, and control of the defendant,” , No. 19CV11219PGGJLC, 2022 WL 455851, at *22 (S.D.N.Y. Feb. 15, 2022), Plaintiff himself would have some knowledge about his coworkers such that his conclusory allegations alone “are nSeoet eHnatgitgleodo dtov t.hReu absisnu &m pRtoitohnm oaf ntr, uLtLhC and are insufficient to withstand a motion to dismiss.” Haggood, , No. 14-CV-34L SJF AKT, 2014 WL 6473527, at *12 (E.D.N.Y. Nov. 17, 2014). In for example, the court held that when the plaintiff pled that there were comparators “upon information and belief” but gave no details as to “who they are, what their positions or responsibilities were at [the company], how their conduct compared to plaintiffs' or how they were treated differentlyId b. y defendants,” the allegations were insufficient to support an inference of discrimination. Plaintiff’s allegations here are similarly lacking. Comparing his treatment with White and Latino “DOC Officers” who were “similarly accused of being in gang affiliation” without any identifying details does not plausibly show they were “similarly situated,” (Am. Compl. ¶ 34-36, 37 p.9), and his disparate treatment claim will be dismissed. However, the plausibility of Plaintiff’s claim of discriminatory discharge does not depend exclusively on allegations regarding comparators. While disparate treatment or specific racialized remarks can support such an inference, “[m]yriad other factual circumstances might plausibly Psuingdgeers tv .t Choant na. mDeopt'itv aotf iMnge nfataclt oHre faoltrh a &n Aemddpiclotiyoenr 'Sse arvdsv.erse action was the plaintiff's race.” Vega , No. 3:20-CV-1918 (JAM), 2022 WL 475162, at *2 (D. Conn. Feb. 16, 2022) (citing , 801 F.3d at 87). Plaintiff has alleged a series of events that fall into this broad “myriad” category of factual circumstances: (a) Captain Papoosha espoused views on gang activity based on racial stereotypes; (b) Plaintiff was twice accused by Captain Papoosha of being in a gang based on racial stereotypes; (c) Plaintiff was fired in December for unarticulated reasons, (d) Defendant’s formally proffered reason for termination of unprofessional conduct and displaying potential SRG hand signs of gangs he had been accused of membership in; and (e) Plaintiff’s performance was satisfactory. (Pl.’s Opp’n. at 15-16.) When viewed in the light most favorable to Plaintiff, Plaintiff has plausibly alleged that the proffered reason for the adverse action was pretextual and motivated by racial animus. Defendant’s motion to dismiss Count 3, Plaintiff’s racial discrimination claim, is denied.C . Retaliation Under Title VII Defendant argues that Plaintiff does not allege he engaged in protected activity because inmates are not protected under Title VII and are not DOC employees, and thus complaining of their racially discriminatory trea Wtmimenmt ercavn.Snuoftf oclko nCnsttiyt.u Pteo liacen Duenpl’tawful employmentpractice. (Def.’s Mem. at 10-12) (citing , 176 F.3d 125, 134 (2d Cir. 1999) (no retaliation claim where Plaintiff opSpaloasse dv. dNis.Yc.rCim. Dinepat'to royf comments made about members of the public by fellow officers); Investigation , 298 F. Supp. 3d 676, 686 (S.D.N.Y. 2018) (opposing mistreat ment of Hasidic

visitors to plaintiff’s division by her co-workers was not protected activity). Plaintiff claims he was complaining about being “required by Defendant to enhgisa goew inn the racially discriminatory treatment of others as a term and condition of employment,” based on “management [ ] instructing new hires such as Plaintiff to ignore the behaviors of security risk group members if the inmates involved were Caucasian.” (Pl.’s Opp’n. at 8-9.) Plaintiff arguIeds. at a minRiemedu mv. Ath.Wat. hLea wharden ac “eg &o oCdo faith belief” that Defendant’s instruction was unlawful. ( at 13); ., 95 F.3d 1170, 1178 (2d Cir. 1996). However, the Complaint contains no allegation that Plaintiff complained about any term or condition of his own employment, only the treatment of those not in an employment relationship with Defendant, and his comment to Captain Papoosha does not plausibly rise to the level of opposing an unlawful employment practice because Captain Papoosha’s comment cannot plausibly be construed as a workplace policy or term of employment. The Ninth Circuit has held that being required to Mdoisycor ivm. Ginoamteez ,a s a condition of employment constitutes an unlawful employment practice. 40 F.3d 982, 984 (9th Cir. 1994) (addressing allegations that plaintiff was discharged for “for protesting against and refusing to cooperate with defendants' practice of allowing showers after work shifts to white inmates but not to black inmates working the same job shift.”). The Second Circuit has not weighed in on this question (nor have any district courts withinin tshteru ccitrecdu it). However, Plaintiff’s claim fails because Plaintiff never pleads that he was to discriminate against Black and Latino inmates—only that he believed he was required to do so based on Papoosha’s comment, which bore no hallmarks of instruction or command. For Plaintiff’s comment or action to qualify as protected activity, it must put the employer “on notice” of alleged discriminatory conduct; “ambiguous complaints” that do not Qamar v. Sheridan Healthcare of mCoankne. , tPh.eC employer aware of the conduct are not enough. ), appeal dismissed., No. 3:18CV1359 (JBA), 2I0n2t'0l H WeaLl t4h5c4a8re1 3E6x,c aht., *I1nc1. (vD. G. Cloobnanl .H Aeuaglt. h6c, a2r0e2 E0xch., LLC (Jan. 14, 2021), (quoting , 470 F. Supp. 2d 345, 357 (S.D.N.Y. 2007). Without any mention of job duties, DOC policy, or what was required of him in his job, Plaintiff’s comment cannot be plausibly construed as opposition to an unlawful employment practice, and the interaction as Plaintiff has pled it does not rise to the level of protected activity. Defendant’s motion to dismiss Plaintiff’s claim for rIVet.a Clioanticolnu sisi ognra nted.

For the foregoing reasons, Defendant’s Motion to Dismiss the Amended Complaint [Doc. # 25] as to Counts 1, 2, and 4 is GRANTED and is DENIED as to Count 3. The parties are directed to file a supplemental 26(f) report by September 21, 2022.

IT IS SO ORDERED.

___/s/_____________________________ Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut: September 14, 2022