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No. 3:11cv594 (MRK)

RULING AND ORDER Plaintiff Susan Davis alleges in this case that her former employer, Defendant Norwalk Economic Opportunity Now, Inc. ("NEON"), unlawfully retaliated against her in violation of 42 U.S.C. 2000e et seq. because she opposed NEON's race- and ancestry-based harassment of a fellow employee. Ms. Davis also alleges that NEON negligently misrepresented the minimum qualifications necessary for her position. Currently pending before the Court is Defendant's Motion to Dismiss [doc. # 20] for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Because the Court finds Ms. Davis's retaliation claim to be purely conclusory and declines to exercise supplemental jurisdiction over her state law negligent misrepresentation claim, NEON's Motion to Dismiss is GRANTED.

I. The Court accepts the factual allegations in Ms. Davis's Amended Complaint [doc. # 18] as true, and draws all reasonable inferences in Ms. Davis's favor. See Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). The facts alleged are sparse, however.

Ms. Davis was hired by NEON as a Program Manager in October 2009. At the time of her hiring, NEON represented to Ms. Davis that she met the minimum qualifications to perform the essential functions of the Program Manager position. This was incorrect, as Ms. Davis learned when she was unable to obtain a security clearance to enter Connecticut correctional facilities because of her criminal record. On August 20, 2010, NEON fired Ms. Davis, claiming that the ability to enter Connecticut correctional facilities was an essential function of the Program Manager position. Ms. Davis contends that she was firedand also that she was harassed and disciplined from May 4, 2010 until her terminationat least in part because she opposed NEON's harassment of a fellow employee on account of that employee's race and ancestry. Ms. Davis filed her Complaint [doc. # 1] against NEON on April 14, 2011 and amended it [doc. # 18] on June 24, 2011. On August 17, 2011, in response to an Order [doc. # 25] by the Court, Ms. Davis filed a Notice [doc. # 27] stating that she had received a right to sue letter from the EEOC dated April 5, 2011. Defendant filed the pending Motion to Dismiss [doc. # 20] on July 7, 2011, and the Court has since received briefs on the Motion from both parties.

II. In reviewing a complaint for failure to state a claim pursuant to Rule 12(b)(6), the Court must "accept[] all factual allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff's favor." Holmes, 568 F.3d at 335. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The "plausible grounds" requirement "does not impose a probability requirement at the pleading stage; it simply calls for enough facts to

raise a reasonable expectation that discovery will reveal evidence" supporting the plaintiff's claim for relief. Twombly, 550 U.S. at 556. That said, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 129 S. Ct. at 1949. Rule 8 of the Federal Rules of Civil Procedurewhich sets forth the pleading standard for claims such as Ms. Davis's"demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Id. (quotation marks omitted) (alteration in original). Twombly and Iqbal reiterated the longstanding bar against purely conclusory allegations; they did not invent or raise that bar. Cf., e.g., Greene v. Wright, 389 F. Supp. 2d 416, 426 (D. Conn. 2005) (quoting Keating v. Carey, 706 F.2d 377, 392 n.2 (2d Cir. 1983) ("[T]his Circuit has consistently held that complaints containing only conclusory, vague, or general allegations cannot survive a motion to dismiss.")).

III. Quoted in its entirety, Ms. Davis's Title VII retaliation claimeven in its amended versionreads as follows: On or about May 04, 2010, and continuing until August 20, 2010, the Defendant began discriminating against the Plaintiff by harassing her, issuing discipline to her, and eventually discharging her from employment, at least in part, because she opposed a discriminatory practice of the Defendant in harassing a fellow employee on account of the employee's race (African American) and ancestry (African) in violation of 42 U.S.C. Sec. 2000e(3) (2010).

Am. Compl. [doc. # 18] 3. The Court fails to see how this differs from the sort of conclusory, "defendant-unlawfully-harmed-me accusation" which the Supreme Court described as insufficient in Iqbal. 129 S. Ct. at 1949. At this stage, Ms. Davis need not establish a prima facie case of retaliation. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). But she must, at a bare minimum, "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Left unstated in the paragraph above are crucial facts supporting Ms. Davis's claimfacts to which someone in Ms. Davis's position surely must have access.1 Whose treatment did Ms. Davis complain about, and when, and to whom? How did NEON respond? In what ways was Ms. Davis herself harassed and disciplined? Was there a connection between Ms. Davis's complaints and her subsequent treatment? Were the two events close in time? Did they involve the same people? The Court does not hold that any one of these questions must necessarily be addressed in order for Ms. Davis's complaint to survive a motion to dismiss. But in the complete absence of any such details, her pleadings reduce to "naked assertion[s] devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949. In its first count concerning Title VII retaliation, Ms. Davis's Amended Complaint [doc. # 18] thus fails to state a claim upon which relief can be granted and must be dismissed. Because Ms. Davis's only federal law claim fails as a matter of law, the Court declines to exercise supplemental jurisdiction over her remaining state law claim of negligent misrepresentation. See Castellano v. Bd. of Trs. of Police Officers' Variable Supplements Fund,

The deficiency in the Amended Complaint is even more notable given the fact that Ms. Davis is represented by counsel. This distinguishes her from the plaintiff in Erikson v. Pardus, 551 U.S. 89 (2007)a case Ms. Davis repeatedly cites, but which was brought by a prisoner who filed his complaint pro se. See id. at 94. As the Supreme Court held: "'a pro se complaint . . . must be held to less stringent standards than formal pleadings drafted by lawyers.' Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106). It necessarily follows that a complaintsuch as Ms. Davis'sdrafted by a lawyer must be held to more stringent standards than the one at issue in Erikson.

937 F.2d 752, 758-59 (2d Cir. 1991). Ms. Davis may pursue that claim in state court if she wishes to do so. Defendant's Motion to Dismiss [doc. # 20] is GRANTED. If Ms. Davis believes that the Court has not properly construed her complaint, or has information that would render her Title VII claim viable, she should file a motion to reconsider (along with a Second Amended Complaint) that addresses the defects noted in this decision. Ms. Davis must file any such motion to reconsider and Second Amended Complaint no later than October 7, 2011. The Court will not grant Ms. Davis any further opportunities to amend her complaint to address the failures noted in this decision. If Ms. Davis fails to file a motion to reconsider by October 7, 2011, the Clerk should close this file.


/s/ Mark R. Kravitz United States District Judge

Dated at New Haven, Connecticut: September 16, 2011.