MINER v. TOWN OF CHESHIRE

No. Civ.A.3:99CV2334SRU

126 F. Supp.2d 184 (2000) | Cited 0 times | D. Connecticut | September 29, 2000

RULING ON MOTIONS TO DISMISS

Plaintiff Margaret Miner ("Miner") brings this action seekingdamages and other relief in connection with alleged sexualharassment and retaliatory conduct in violation of Title VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e etseq., and the Connecticut Fair Employment Practices Act("CFEPA"), Conn.Gen.Stat. § 46a-60. Miner also seek damages andother relief for the following causes of action under Connecticutcommon law: intentional infliction of emotional distress;negligent infliction of emotional distress; civil battery andassault; negligent supervision; breach of the implied covenant ofgood faith and fair dealing and defamation. Currently pending isthe defendant Town of Cheshire's ("the Town") Motion to Dismiss(doc.# 12) and the defendant Kerry Deegan's ("Deegan") Motionto Dismiss (doc.# 14). For the reasons stated herein, theTown's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.Deegan's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Facts

For the purposes of the motions to dismiss, the court assumesthe following facts set forth in the plaintiff's amendedcomplaint to be true. Miner was employed as a police officer withthe Town of Cheshire Police Department. Deegan is a Lieutenantwith the Cheshire Police Department and was the plaintiff's ShiftCommander.

Miner alleges that, in August 1997, Deegan forced Miner to kisshim in an elevator. At or around the same time, Deegan grabbedMiner's hand and placed it on his crotch. Miner alleges that, onat least one occasion, Deegan grabbed one of plaintiff's breasts.Miner alleges that, on severaloccasions, Deegan drove by her house and made numerous phonecalls to the plaintiff at her home.

Miner repeatedly told Deegan to leave her alone.Notwithstanding her protests, Deegan continued to harass theplaintiff and to make various overtures towards her. Accordingly,Miner complained to the Cheshire Police Department on severaloccasions. The Cheshire Police Department conducted aninvestigation and certain restrictions were placed upon Deegan.Specifically, Deegan was not to work the same shifts as Minerand, for some period of time, Deegan was placed on paid leave.Miner alleges that, upon Deegan's return from paid leave,however, the harassment continued.

Miner claims that, in retaliation for her reporting the allegedsexual harassment, Deegan began to spread false rumors about herthroughout the police force and the Cheshire community.

On May 19, 1998, Miner injured her back while working andsubsequently filed a workers' compensation claim for the injuriesshe sustained. Miner alleges that Deegan and the Cheshire PoliceDepartment questioned the origin and severity of her injuriesand, to this date, have contested Miner's workers' compensationclaim. Miner alleges that the defendants contest her claimbecause she is a female and because she pursued her sexualharassment complaint. She alleges that similar workers'compensation complaints by male officers have not been contested.

Miner alleges that she was forced to leave her job as a policeofficer because of the sexual harassment, the defendants'response to her complaints, and the emotional distress shesustained because of the harassment. Moreover, Miner claims thatharassment from other management officials created a hostile workenvironment that made it impossible for her to perform her jobduties or for her to reasonably believe that her complaints ofsexual harassment would be taken seriously.

On or about December 21, 1998, Miner filed complaints with theConnecticut Commission on Human Rights and Opportunities ("CHRO")and the Equal Employment Opportunities Commission ("EEOC"). Inresponse to these complaints, the Town offered Miner her job backwith the same work restrictions placed upon Deegan as before.Relying on representations that Deegan would not harass her andthat she would suffer no retaliation, Miner withdrew from collegeand returned to the Cheshire Police Department.

On or about March 29, 1999, a fellow officer asked Miner toswitch shifts with him for that day. Although Miner would beworking on Deegan's shift, Miner agreed to work that night. AnOfficer Fasano, knowing about the work restrictions on Deegan,agreed with Miner to work at the dispatch desk with Deegan thatnight. Notwithstanding this arrangement, Deegan demanded thatMiner work alone with Deegan at the front desk. Miner refused towork alone with Deegan. When Deegan insisted, Miner left thepolice station. Deegan issued a written reprimand of theplaintiff for insubordination and neglect of duty.

The next day, the Cheshire Police Department, in light ofDeegan's written warning, accused Miner of insubordination andneglect of duty. The Cheshire Police Department informed Minerthat there were no work restrictions on Deegan. Miner allegesthat the hostile and offensive work environment created by Deeganforced her to resign.

DISCUSSION

Standard for a Motion to Dismiss

A motion to dismiss for failure to state a claim pursuant toFed.R.Civ.P. 12(b)(6) should be granted only if "it is clear thatno relief could be granted under any set of facts that could beproved consistent with the allegations." Hishon v. King &Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).The function of a motion to dismiss is "merely to assess thelegal feasibility of a complaint, not to assay the weight ofevidence which might be offered in support thereof." RyderEnergy Distribution Corp. v. Merrill Lynch Commodities, Inc.,748 F.2d 774, 779 (2d Cir. 1984), quoting Geisler v.Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). The motion musttherefore be decided solely on the facts alleged. See Goldman v.Belden, 754 F.2d 1059, 1065 (2d Cir. 1985).

When deciding a motion to dismiss for failure to state a claimon which relief can be granted, the court must accept thematerial facts alleged in the complaint as true, and allreasonable inferences are drawn and viewed in a light mostfavorable to the plaintiff. Leeds v. Meltz, 85 F.3d 51, 53 (2dCir. 1996); Staron v. McDonald's Corp., 51 F.3d 353, 355 (2dCir. 1995); Skeete v. IVF America, Inc., 972 F. Supp. 206, 207(S.D.N.Y. 1997). The court "must not dismiss the action `unlessit appears beyond doubt that the plaintiff can prove no set offacts in support of [the plaintiff's] claim which would entitle[the plaintiff] to relief.'" Cohen v. Koenig, 25 F.3d 1168,1172 (2d Cir. 1994). The issue is not whether the plaintiff willprevail, but whether she should have the opportunity to prove herclaims. See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2L.Ed.2d 80 (1957).

The Town's Motion to Dismiss

The Town moved to dismiss Counts One, Three, Four, Five, Six,Seven and Eight of the plaintiff's initial complaint. Thesecounts are, respectively: sexual harassment in violation of TitleVII, sexual harassment and retaliation in violation of CFEPA,intentional infliction of emotional distress, negligentinfliction of emotional distress, civil battery and assault,negligent supervision and breach of the implied covenant of goodfaith and fair dealing. Because they set forth the same causes ofaction, the court treats the Town's Motion to Dismiss as directedat Counts One, Three, Four, Five, Six, Seven and Eight of theplaintiff's Amended Complaint.1

Counts One and Three (Sexual Harassment in Violation of TitleVII and CFEPA)

The Town argues that Miner's claims of sexual harassment in1997 are barred by the applicable limitations period. The Townclaims that complaints must be filed with the EEOC within 300days of an alleged violation if a complaint first has been filedwith a comparable state commission such as the CHRO. Similarly,they argue that the CHRO has a 180-day "lookback" period thatalso operates as a statute of limitations.

The Town argues that Miner first filed her complaint with theCHRO on December 21, 1998. Accordingly, the 300-day EEOC periodcovers violations occurring after February 24, 1998 and the CHROperiod covers back to June 23, 1998. Miner's complaint, however,alleges incidents of sexual harassment that allegedly occurred inAugust and September 1997. Thus, the Town argues, such conduct isoutside the scope of either limitations period.

In opposition, Miner argues that her allegations are timelypursuant to the continuing violations doctrine.

Because federal law on this issue is applicable to CFEPA, thecourt will analyze counts one and three together. See Maloney v.Connecticut Orthopedics, P.C., 47 F. Supp.2d 244, 247 (D.Conn.1999), citing Malasky v. Metal Products Corp.,44 Conn. App. 446, 454, 689 A.2d 1145 (1997),cert. denied, 241 Conn. 906, 695 A.2d 539 (1997).

Statute of Limitations

Title VII requires plaintiffs to exhaust administrativeremedies prior to filing an action for damages in federal court.See 42 U.S.C. § 2000e-5; Zipes v. Trans World Airlines, Inc.,455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Brownv. General Services Admin., 425 U.S. 820, 832-33, 96 S.Ct. 1961,48 L.Ed.2d 402 (1976); Blake-McIntosh v. Cadbury Beverages,Inc., No. 3:96cv2554(EBB), 1999 WL 643661 at *6 (D.Conn. 1999).First, the plaintiff must file a complaint with a state or localfair employment opportunity commission if one exists. See42 U.S.C. § 2000e-5(c); Great American Fed. Sav. & Loan Ass'n v.Novotny, 442 U.S. 366, 373, 99 S.Ct. 2345, 60 L.Ed.2d 957(1979); Blake-McIntosh, 1999 WL 643661 at *6. Second, theplaintiff must file a timely charge of discrimination with theEEOC. See 42 U.S.C. § 2000e-5(e); Blake-McIntosh, 1999 WL643661 at *6. Finally, the plaintiff must receive a right-to-sueletter from the EEOC and file suit within 90 days. See42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Center v. Brown,466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984);Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct.1011, 39 L.Ed.2d 147 (1974); Blake-McIntosh, 1999 WL 643661 at*6.

Where the plaintiff first files discrimination charges with astate agency, district courts may hear only those claimsinvolving discriminatory acts that were raised before the EEOCand that occurred within 300 days of the date the EEOC charge wasfiled. See 42 U.S.C. § 2000e-5(e); Quinn v. Green Tree CreditCorp., 159 F.3d 759, 765 (2d Cir. 1998). To determine thetimeliness of an EEOC complaint and an ensuing lawsuit, the courtmust identify the dates on which the alleged discriminatory actstook place. See Delaware State College v. Ricks, 449 U.S. 250,256-62, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Blake-McIntosh,1999 WL 643661 at *6.

Miner filed her EEOC charge on December 21, 1998, seeAm.Compl. ¶ 46, thus preserving her right to seek judicial reviewof those acts transpiring on or after February 24, 1998. See VanZant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996); Blake-McIntosh, 1999 WL 643661 at *6. The plaintiff'sclaims based upon sexual harassment allegedly occurred in Augustand September 1997 and, accordingly are time-barred because theyhappened prior to February 24, 1998. Miner argues, however, thatthese acts were committed as part of a "continuing violation."

Continuing Violation

"[F]iling a timely charge of discrimination with the EEOC isnot a jurisdictional prerequisite to suit in federal court, but arequirement that, like a statute of limitations, is subject towaiver, estoppel, and equitable tolling." Zipes, 455 U.S. at393, 102 S.Ct. 1127. A limitations period may be tolled byoffering evidence of a "continuing violation," so long as atleast one allegation falls within the appropriate statutoryperiod. See Delaware State College v. Ricks, 449 U.S. 250, 257,101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Carrasco v. New York CityOff-Track Betting Corp., 858 F. Supp. 28, 31 (S.D.N.Y. 1994),aff'd, 50 F.3d 3 (2d Cir. 1995); Martinez v. UnitedTechnologies Corp., Pratt & Whitney Aircraft Division, No. Civ3:97cv02471(AHN), 1998 WL 342043 at *2 (D.Conn. 1998); Wingfieldv. United Techs. Corp., 678 F. Supp. 973, 979 (D.Conn. 1988). Thecontinuing violations doctrine extends "the limitations periodfor all claims of discriminatory acts committed under an ongoingpolicy of discrimination even if those acts, standing alone,would have been barred by the statute of limitations." Annis v.County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998)(internal brackets and quotations omitted).

A continuing violation may be found "where there is proof ofspecific ongoing discriminatory policies or practices,or where specific and related instances of discrimination arepermitted by the employer to continue unremedied for so long asto amount to a discriminatory policy or practice." Cornwell v.Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Examples ofcontinuing violations cited with approval by the Second Circuitinclude use of discriminatory seniority lists or employmenttests. See Van Zant, 80 F.3d at 713; Lambert v. GeneseeHosp., 10 F.3d 46, 53 (2d Cir. 1993). Discrete incidents or evensimilar multiple incidents of discrimination that do not resultfrom discriminatory policies or mechanisms, however, do notamount to a continuing violation. See Quinn, 159 F.3d at 765;Cornwell, 23 F.3d at 704. Moreover, courts in this circuitdisfavor application of the continuing violations doctrine andhold that only compelling circumstances warrant use of thisexception to the statute of limitations. See, e.g., Sharkey v.Lasmo (AUL Ltd.), 992 F. Supp. 321, 334 (S.D.N.Y. 1998);Martinez, 1998 WL 342043 at *2; Bawa v. Brookhaven Nat'lLaboratory Associated Univs., Inc., 968 F. Supp. 865, 868(E.D.N.Y. 1997); Samimy v. Cornell Univ., 961 F. Supp. 489, 494(W.D.N.Y. 1997); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408,1415 (S.D.N.Y. 1989).

"[A] continuing violation can be established by showing either(1) that the . . . incidents of discrimination against plaintiffconstitute a series of related acts or (2) that defendant'sactions were taken pursuant to the maintenance of adiscriminatory system both before and during the limitationperiod." Martinez, 1998 WL 342043 at *2, citing Wingfield v.United Techs. Corp., 678 F. Supp. 973, 979 (D.Conn. 1988); seealso Urashka v. Griffin Hospital, 841 F. Supp. 468, 472 (D.Conn.1994) ("To establish a continuing violation a plaintiff wouldhave to show a series of related acts, one or more of which fallswithin the limitations period, or the maintenance of adiscriminatory system both before and during the limitationsperiod.") (internal brackets and quotations omitted; citationsomitted).

In order to claim that discriminatory acts constitute a seriesof related acts, "it must be clear that the acts complained ofare not completed, distinct occurrences." Martinez, 1998 WL342043 at *2, quoting Yokum v. St. Johnsbury Trucking Co.,595 F. Supp. 1532, 1534 (D.Conn. 1984). In addition, "[a] continuingviolation . . . may not be based on the continuing effects of anearlier discrimination or on a completed act of discrimination."Martinez, 1998 WL 342043 at *2, citing United Air Lines v.Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977);Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907-08 (2d Cir.1997) ("[a] continuing violation is not established merelybecause an employee continues to feel the effects of adiscriminatory act"); Blesedell, 708 F. Supp. at 1414; Shelfordv. New York State Teachers Retirement System, 889 F. Supp. 81, 85(S.D.N.Y. 1993) ("the mere continuation of a discriminatory act'seffect, however painful those effects may be, is not sufficientto rescue a stale claim concerning a violation that occurredprior to the limitations period."); Malarkey v. Texaco, Inc.,559 F. Supp. 117, 120 (S.D.N.Y. 1982) (recognizing that "thecritical question is whether any present violation exists"),aff'd, 704 F.2d 674 (2d Cir. 1983).

As currently pled, the only specific acts of sexual harassmentset forth in the amended complaint are distinct occurrences thatwere completed in or around August or September 1997. Miner setsforth no specific acts of sexual harassment that occurred afterthis time. Rather, the remaining claims set forth in the amendedcomplaint are pled in terms of retaliation — for which Minerhas brought separate causes of action. See, e.g., Am.Compl. ¶34 ("In retaliation for filing a complaint of sexualharassment, Mr. Deegan began to spread false rumors about theplaintiff throughout the police force and throughout the Cheshirecommunity.") (emphasis added); Am.Compl. ¶ 42 ("DefendantCheshire Police Department and Mr. Deegan have contestedplaintiff's Workers' CompensationClaim because plaintiff is a female and because she filed acomplaint of sexual harassment.") (emphasis added); Am. Compl. ¶59 ("Mr. Deegan's demand that plaintiff work alone with him wasin retaliation for plaintiff filing a complaint with the CHRO.")(emphasis added); Am. Compl. ¶ 60 ("the written reprimand thatplaintiff received from Mr. Deegan was in retaliation forplaintiff filing a complaint with the CHRO.") (emphasis added);Am. Compl. ¶ 61 ("the written reprimand that plaintiff receivedfrom Mr. Deegan was in retaliation for plaintiff filing acomplaint with the EEOC.") (emphasis added); Am. Compl. ¶ 67("Cheshire Police Department's offensive and indignant behaviortowards plaintiff was in retaliation for plaintiff filing acomplaint with the CHRO.") (emphasis added); Am.Compl. ¶ 68("Cheshire Police Department's offensive and indignant behaviortowards plaintiff was in retaliation for plaintiff filing acomplaint with the EEOC") (emphasis added).

A continuing violation, however, "may not be based on thecontinuing effects of an earlier discrimination or on a completedact of discrimination." Martinez, 1998 WL 342043 at *2; seealso United Air Lines, 431 U.S. at 558, 97 S.Ct. 1885;Lightfoot, 110 F.3d at 907-08; Blesedell, 708 F. Supp. at1414; Malarkey, 559 F. Supp. at 120. Moreover, a continuingviolation requires a greater repetition and duration of theviolations than has been alleged here. Martinez, 1998 WL 342043at *2, citing Riedinger v. D'Amicantino, 974 F. Supp. 322, 326(S.D.N.Y. 1997) (finding that a "persistent pattern of harassingbehavior" by employer sufficient); Petrosky v. New York StateDep't of Motor Vehicles, 971 F. Supp. 75, 78 (N.D.N.Y. 1997)("repeated and continuous" occurrences of sexual harassmentsufficient to establish a continuing violation). Absent specificallegations of additional instances of sexual harassment — atleast one of which occurred within the limitations period, the1997 incidents alleged by plaintiff do not constitute a series ofdiscriminatory acts.

As noted above, a continuing violation may also be establishedwhere the acts were part of a broader discriminatory system thatthe defendant maintained prior to and during the limitationsperiod. Martinez, 1998 WL 342043 at *3, citing Blesedell, 708F. Supp. at 1415; Wingfield, 678 F. Supp. at 979. This exception"applies to cases involving specific discriminatory policies ormechanisms such as discriminatory lists . . . or employment tests. . . [and] multiple incidents of discrimination, even similarones, that are not the result of a discriminatory policy ormechanism, do not amount to a continuing violation." Lambert v.Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993); see also Van Zantv. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996)(alleged violations were not connected to a policy or practice ofthe employer and did not qualify for a continuing violationexception); Carrasco, 858 F. Supp. at 31-32 (general allegationsin complaint about the existence of a discriminatory patterninsufficient as opposed to specific policies or mechanisms). Thiscan also be constructively found "where specific and relatedinstances of discrimination are permitted by the employer tocontinue unremedied for so long as to amount to a discriminatorypolicy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2dCir. 1994).

Here, Miner makes no allegations that the sexual harassment wasa policy or practice of the Town. Accordingly, she cannot rely onthat theory in support of her continuing violation claim. Rather,Miner relies on the theory that a continuing violation may beconstructively found where specific and related instances ofdiscrimination are permitted by the employer to continueunremedied for so long as to amount to a discriminatory policy orpractice. This theory, however, is not supported by theallegations set forth in her amended complaint.

As noted above, other than those acts described in August andSeptember 1997, there are no specific allegations of sexualharassment set forth in the amended complaint. Moreover, Minerexpressly alleges that "[a]s a result of plaintiff's complaintsof sexual harassment, [the] Cheshire Police Department . . .conducted an investigation," Am.Compl. ¶ 30, and, as a result ofthat investigation, "certain restrictions were placed upon Mr.Deegan," Am. Compl. ¶ 31, including Deegan's being placed on paidleave and Deegan's being instructed not to work the same shiftsas Miner. Thus, it can hardly be said that the Town allowedrelated incidents of discrimination to go unremedied for so longas to amount to a discriminatory policy or practice.

Although Miner alleges that upon Deegan's return from his paidleave, the harassment continued and the Town did nothing furtherto stop it, the amended complaint is totally devoid of a specificallegation of sexual harassment occurring within the limitationsperiod. Moreover, "a conclusory allegation of a continuingviolation will not suffice." Bampoe v. Coach Stores, Inc.,93 F. Supp.2d 360, 369 (S.D.N.Y. 2000); see also Ahmed v. SamsonManagement Corp., No. 95Civ. 9530(MBM), 1996 WL 183011 at *5(S.D.N.Y. 1996); Carrasco, 858 F. Supp. at 31-32; Alveari v.Am. Int'l Group, Inc., 590 F. Supp. 228, 231 (S.D.N.Y. 1984).Viewing Miner's allegations most favorably to her, the lastspecific instance of sexual harassment that is identified inthe amended complaint took place no later than September 1997. Asnoted above, the allegations subsequently set forth in theamended complaint all relate to, and are pled in terms of,retaliation. See, e.g., Am.Compl. ¶ 34 ("In retaliation forfiling a complaint of sexual harassment, Mr. Deegan began tospread false rumors about the plaintiff throughout the policeforce and throughout the Cheshire community.") (emphasis added);Am.Compl. ¶ 42 ("Defendant Cheshire Police Department and Mr.Deegan have contested plaintiff's Workers' Compensation Claimbecause plaintiff is a female and because she filed a complaintof sexual harassment.") (emphasis added); Am.Compl. ¶ 59 ("Mr.Deegan's demand that plaintiff work alone with him was inretaliation for plaintiff filing a complaint with the CHRO.")(emphasis added); Am.Compl. ¶ 60 ("the written reprimand thatplaintiff received from Mr. Deegan was in retaliation forplaintiff filing a complaint with the CHRO.") (emphasis added);Am.Compl. ¶ 61 ("the written reprimand that plaintiff receivedfrom Mr. Deegan was in retaliation for plaintiff filing acomplaint with the EEOC.") (emphasis added).

That Miner has alleged several specific acts of retaliationwithin the limitations period is unavailing with respect to herclaims of sexual harassment. A plaintiff cannot resurrectclaims of discrimination that are outside the limitations periodthrough subsequent acts of retaliation within the limitationsperiod. See, e.g., Quinn v. Green Tree Credit Corp.,159 F.3d 759, 759 (2d Cir. 1998) (affirming dismissal of harassment claimas untimely and vacating dismissal of retaliation claim; "[i]tsometimes happens — more frequently than might be imagined — thatan employee whose primary claim of discrimination cannot survivepre-trial dispositive motions is able to take to trial thesecondary claim that he or she was fired or adversely affected inretaliation for asserting the primary claim"). Although Miner'sclaims of sexual harassment and retaliation are intertwined, theyare separate and independent causes of action. Indeed, where, ashere, Miner has alleged retaliatory acts within the limitationsperiod, Miner could proceed with a retaliation claim even if sheis unable to allege or establish claims of sexual harassmentwithin the limitations period. See, e.g., Quinn, 159 F.3d at759; see also Cooper v. Wyeth Ayerst Lederle, 106 F. Supp.2d 479,501 (S.D.N.Y. 2000) (plaintiff cannot "bootstrap her claimfor failure to file a sexual harassment grievance onto the secondaspect of her DFRclaim — failure to pursue the grievance in a non-discriminatorymanner — in order to avoid the statute of limitations. TheUnion's alleged failure to file a sexual harassment/retaliationgrievance is a wholly separate act from any discriminatoryfailure to prosecute the grievance that was filed. Those twoclaims are theoretically, factually and logically distinct. Theunderlying incidents therefore do not constitute a continuingviolation within the meaning of Cornwell.").

In sum, Miner fails to state claims for sexual harassmentbecause those claims are time-barred on their face, and she haspled no facts that would trigger application of the continuingviolation doctrine or any other equitable tolling principles.Simply put, the plaintiff has not specifically alleged any claimsof sexual harassment within the limitations period. Miner'sattempt to invoke the continuing violation doctrine fails becausethe only specific acts of sexual harassment that she hasidentified in her amended complaint — Deegan's conduct in Augustand September 1997 — occurred well before the pertinentlimitation period. Under the circumstances presented here, thecourt concludes that Miner has not sufficiently pled a continuingviolation for her claims of sexual harassment. Accordingly, CountOne must be dismissed. Similarly, Count Three — insofar as itasserts a violation of CFEPA for sexual harassment — must also bedismissed. These counts will be dismissed, however, withoutprejudice to the filing of an amended complaint that alleges,with the requisite clarity and specificity, a continuing courseof sexual harassment. See, e.g., Ahmed, 1996 WL 183011 at *5;Shelford, 889 F. Supp. at 89; Urashka, 841 F. Supp. at473.2

Counts Four, Five & Six — Municipal Liability

In counts four, five and six of her amended complaint, Mineralleges claims against both the Town and Deegan for intentionalinfliction of emotional distress; negligent infliction ofemotional distress and intentional battery and assault. The Townhas moved to dismiss these counts as against the Town on thegrounds of common law and statutory immunity. The Town has alsomoved to dismiss the claim for intentional infliction ofemotional distress for failure to allege conduct that issufficiently extreme and outrageous. In addition, the Town hasmoved to dismiss the claim for negligent infliction of emotionaldistress for failure to allege unreasonable conduct during thetermination process and for failure to allege sufficient factsthat the Town's conduct was so egregious that it should haverealized that it was creating a risk of causing emotionaldistress.

Intentional Infliction of Emotional Distress

In Count Four, Miner asserts a claim against both the Town andDeegan for intentional infliction of emotional distress. Withrespect to her allegations against the Town, Miner alleges that:

The Cheshire Police Department's conduct, as alleged, including but not limited to refusing to take action to protect plaintiff and other women from sexual harassment; refusing to take action to protect plaintiff from Mr. Deegan's aggressive, offensive, and hostile conduct; reprimanding plaintiff for asserting her rights to be free from sexual harassment; forcing plaintiff to resign her position a second time in retaliation for said exercise of her rights, would be considered to be extreme and outrageous by any reasonable member of the community and would be likely to cause offense and injury to any reasonable woman.

Am.Compl. at 13, ¶ 81.3 Miner also alleges that "[t]heCheshire Police Department is responsible for the conduct of Mr.Deegan to the extent that it knew of the risk that he wouldharass plaintiff but did not make reasonable efforts to preventit." Am. Compl. at 13, ¶ 82. Miner alleges that: (1) the"[d]efendants intended to inflict emotional distress uponplaintiff and/or knew or should have known that emotionaldistress was a substantially likely result of its conduct,"Am.Compl. at 13, ¶ 90; (2) the "[d]efendants' conduct, asalleged, has caused and continues to cause plaintiff toexperience severe emotional distress," Am. Compl. at 13, ¶ 91;and (3) the "[d]efendants' conduct, as alleged, has caused herlost past and future earnings, loss of employment benefits, andexpenses and costs to institute this action." Am.Compl. at 13, ¶92.

To the extent that Miner alleges that the Town is liable forany intentional infliction of emotional distress by Deegan, seeAm.Compl. at 13, ¶ 82, such a claim is precluded byConn.Gen.Stat. § 52-557n, which provides, that "a politicalsubdivision of the state shall not be liable for damages toperson or property caused by . . . [a]cts or omissions of anyemployee, officer or agent which constitute criminal conduct,fraud, actual malice or willful misconduct . . ."Conn.Gen.Stat. § 52-557n(a)(2)(A) (emphasis added). UnderConnecticut law, the term "willfulness" is synonymous with"intentional." Bhinder v. Sun Co., 246 Conn. 223, 242 n. 14,717 A.2d 202 (1998) ("While [courts] have attempted to drawdefinitional [distinctions] between the terms willful, wanton orreckless, in practice the three terms have been treated asmeaning the same thing."), quoting Dubay v. Irish,207 Conn. 518, 533, 542 A.2d 711 (1988); see also Elliott v. City ofWaterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998) (legalconcepts of wanton, reckless, willful, intentional and maliciousconduct indistinguishable); Bauer v. Waste Management ofConnecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996) ("Awillful act is one done intentionally or with reckless disregardof the consequences of one's conduct."). Thus, the Town may notbe liable under section 52-557n(a)(2)(A) for Deegan's allegedintentional infliction of emotional distress.

Similarly, Miner's claim for intentional infliction ofemotional distress directly against the Town is insufficientbecause the Town's conduct was not extreme or outrageous as amatter of law.

In order to assert a claim for intentional infliction ofemotional distress, the plaintiff must establish four elements:"(1) that the actor intended to inflict emotional distress; orthat he knew or should have known that the emotional distress wasa likely result of his conduct; (2) that the conduct was extremeand outrageous; (3) that the defendant's conduct was the cause ofthe plaintiff's distress; and (4) that the distress suffered bythe plaintiff was severe." Petyan v. Ellis, 200 Conn. 243, 253,510 A.2d 1337 (1986); see also Cavuoto v. Oxford Health Plans,Inc., No. 3:99-CV-00446 (EBB), 2000 WL 888263 at *8 (D.Conn.June 22, 2000).

Whether the Town's conduct is sufficient to satisfy the elementof extreme and outrageous conduct is a question, in the firstinstance, for the court. Johnson v. Chesebrough-Pond's USA Co.,918 F. Supp. 543, 552 (D.Conn.), aff'd, 104 F.3d 355 (2d Cir.1996). Liability for intentional infliction of emotional distressrequires conduct that is so extreme and outrageous that it goesbeyond all possible bounds of decency, is regarded as atrocious,is utterly intolerable in a civilized society, and is of a naturethat is especially calculated to cause, and does cause, mentaldistress of a very serious kind. See Taylor v. Maxxim Medical,Inc., 2000 WL 630918 at *3(D.Conn. 2000); Rapkin v. Rocque, 97 F. Supp.2d 244 (D.Conn.2000), citing Petyan, 200 Conn. at 254 n. 5, 510 A.2d 1337 andDeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807(1991); Johnson, 918 F. Supp. at 552 (general rule "is thatthere is liability for conduct exceeding all bounds usuallytolerated by a decent society, of a nature which is especiallycalculated to cause, and does cause, mental distress of a veryserious kind"), quoting Mellaly v. Eastman Kodak Co.,42 Conn. Sup. 17, 19-20, 597 A.2d 846 (Conn. Sup.er.Ct. 1991); see alsoCavuoto, 2000 WL 888263 at *8; 1 Restatement (Second) at comment(d) ("[C]onduct must be so outrageous and extreme . . . as to gobeyond all possible grounds of decency, and to be regarded asatrocious, and utterly intolerable in a civilized society.").Thus, "[i]t is the intent to cause injury that is the gravamen ofthe tort." DeLaurentis, 220 Conn. at 266-67, 597 A.2d 807,citing Hustler Magazine v. Falwell, 485 U.S. 46, 53, 108 S.Ct.876, 99 L.Ed.2d 41 (1988).

Applying these stringent standards to the present case andviewing the allegations in the light most favorable to theplaintiff, the court holds that the Town's conduct as alleged inthe amended complaint was not "so outrageous and extreme . . .[as] to be regarded as atrocious and utterly intolerable in acivilized society."

In the employment context, it is the employer's conduct, notthe motive behind the conduct, that must be extreme oroutrageous. See, e.g., Huff v. West Haven Board of Education,10 F. Supp.2d 117, 123 (D.Conn. 1998). An employer's adverse yetroutine employment action, even if improperly motivated, does notconstitute extreme and outrageous behavior when the employer doesnot conduct that action in an egregious and oppressive manner.See, e.g., Hill v. Pinkerton Security & Investigation Services,Inc., 977 F. Supp. 148, 160 (D.Conn. 1997) (included paying anAfrican-American female less money than her counterparts anddisciplining, reprimanding, and transferring plaintiff to twoother locations in response to her wage investigation); White v.Martin, 23 F. Supp.2d 203, 208 (D.Conn. 1998), aff'd,198 F.3d 235 (2d Cir. 1999) (employer's alleged discrimination, denial ofa promotion, discipline, and harassment based on plaintiff'sgender not extreme or outrageous).

In addition to routine employment actions, Connecticut courtshold that insults, verbal taunts, threats, indignities,annoyances, petty oppressions or conduct that displays badmanners or results in hurt feelings do not support a claim forintentional infliction of emotional distress. Taylor, 2000 WL630918 at *3 (citing Kintner v. Nidec-Torin Corp., 662 F. Supp. 112,114 (D.Conn. 1987); Reed, 652 F. Supp. at 137); Ferraro v.Stop & Shop Supremarket Co., 2000 WL 768525 at *4 (Conn. Sup.er.2000) (internal citations omitted).

Miner's claims against the Town for intentional infliction ofemotional distress are that it: (1) "refus[ed] to take action toprotect plaintiff and other women from sexual harassment;" (2)"refus[ed] to take action to protect plaintiff from Mr. Deegan'saggressive, offensive, and hostile conduct;" and (3)"reprimand[ed] plaintiff for asserting her rights to be free fromsexual harassment, forcing plaintiff to resign her position asecond time in retaliation for said exercise of her rights. . .." Am.Compl. at 13, ¶ 81. As a matter of law, this is notsufficiently extreme or outrageous to support a claim ofintentional infliction of emotional distress. In the absence ofallegations of facts indicating that the Town conducted suchactivities in a humiliating, extreme, or outrageous manner, thecomplaint does not state a claim for intentional infliction ofemotional distress. Accordingly, Count Four as alleged againstthe Town must be dismissed.

Negligent Infliction of Emotional Distress

In Count Five, Miner alleges a claim against both the Town andDeegan fornegligent infliction of emotional distress. With respect to theallegations against the Town, Miner alleges that "[t]he CheshirePolice Department is responsible for its own conduct, and theconduct of Mr. Deegan, to the extent that it knew of the riskthat he would continue to harass and retaliate against theplaintiff, but did not make reasonable efforts to prevent it."Am. Compl. at 14, ¶ 80. Miner claims that "[d]efendants knew orshould have known that its conduct, as described above, wassubstantially likely to cause plaintiff emotional distress, whichwas further likely to result in physiological injury and lostpast and future earnings and costs for instituting this action."Am.Compl. at 14, ¶ 81. Miner claims that she has sustained suchdamages. Am.Compl. at 14, ¶ 82. Miner further alleges that the"Cheshire Police Department is responsible for the conduct of itsemployees including Mr. Deegan in respondeat superior." Am.Compl.at 14, ¶ 83.

Plaintiff's theory of respondeat superior liability must bedismissed because "[a] municipality enjoys governmental immunityfor common-law negligence unless a statute has limited orabrogated that immunity." Hughes v. City of Hartford,96 F. Supp.2d 114, 120 (D.Conn. 2000), citing Williams v. City ofNew Haven, 243 Conn. 763, 766, 707 A.2d 1251 (1998).

Similarly, Conn.Gen.Stat. § 52-557n does not permit a claimagainst the Town for its own negligence — or that of itsemployees — because that statute only authorizes claims innegligence where the municipality has breached a ministerial, butnot a discretionary, duty.4 Tice v. Southington Board ofEducation, 94 F. Supp.2d 242, 245 (D.Conn. 2000). UnderConnecticut law, a municipality is immune from liability for the"negligent acts or omissions which require the exercise ofjudgment or discretion. . . ." Conn.Gen.Stat. § 52-557n(a)(2)(B).A municipality is "not immune, however, from liability forministerial acts performed in a prescribed manner without theexercise of judgment or discretion as to the propriety of theaction. . . . Thus, liability may attach for a negligentlyperformed ministerial act, but not for a negligently performed .. . discretionary act." Romano v. Derby, 42 Conn. App. 624,629, 681 A.2d 387 (1996) (citations and internal quotation marksomitted). Accordingly, the Town's liability here hinges uponwhether the alleged conduct was discretionary or ministerial.

Ordinarily, "whether the act complained of . . . isdiscretionary or ministerial is a factual question which dependsupon the nature of the act complained of." Id. However,"extensive and near-unanimous precedent in Connecticut clearlydemonstrates that the acts or omissions alleged in theplaintiff's complaint [against the Town] — the failure to . . .supervise, control and discipline — are discretionary acts as amatter of law." Hughes, 96 F. Supp.2d at 119 (collecting cases).Accordingly, the acts alleged in the Miner's amended complaint onthe part of the Town of Cheshire are discretionary in nature, andare therefore protected by governmental immunity. Thus, the countfive must be dismissed as against the Town. See Hughes, 96F. Supp.2d at 120.

In addition, Miner's claim for negligent infliction ofemotional distress against the Town is also insufficient as amatter oflaw. A claim of negligent infliction of emotional distress as anindependent tort is relatively new to Connecticut law.Historically, emotional distress was not compensated at commonlaw in the absence of physical injury or a risk of harm fromphysical impact. Malik v. Carrier Corp., 986 F. Supp. 86, 89(D.Conn. 1997), aff'd in part, rev'd in part, 202 F.3d 97 (2dCir. 2000). It was not until 1978 that the Connecticut SupremeCourt recognized the tort of negligent infliction of emotionaldistress. Montinieri v. Southern New England Telephone Co.,175 Conn. 337, 398 A.2d 1180 (1978). In Montinieri, andconsistently ever since, the Connecticut Supreme Court has heldthat, in order to assert a cause of action for negligentinfliction of emotional distress, a plaintiff has the burden ofpleading that the "defendant should have realized that itsconduct involved an unreasonable risk of causing emotionaldistress and that that distress, if it was caused, might resultin illness or bodily harm." Id. at 345, 398 A.2d 1180; seealso Parsons v. United Technologies Corp., 243 Conn. 66, 88,700 A.2d 655 (1997); Morris v. Hartford Courant Co., 200 Conn. 676,683-84, 513 A.2d 66 (1986). In holding that recovery fornegligent infliction of emotional distress does not requireallegations of physical injury or the risk of harm from physicalimpact, the Court recognized that this tort must nevertheless "belimited so as not to `open up a wide vista of litigation in thefield of bad manners, where relatively minor annoyances hadbetter be dealt with by instruments of social control other thanthe law.'" Montinieri, 175 Conn. at 345, 398 A.2d 1180,quoting Calvert Magruder, Mental and Emotional Disturbance inthe Law of Torts, 49 HARV.L.REV. 1033, 1035 (1939).

Because emotional distress in the workplace is not uncommon,courts have "viewed the application of the [negligent inflictionof emotional distress] doctrine to employment relationships withsome alarm." Hernandez v. City of Hartford, 30 F. Supp.2d 268,273 (D.Conn. 1998), quoting Malik, 986 F. Supp. at 91. Moreover,the Connecticut Supreme court has stated that, in the employmentcontext, "courts should not lightly intervene to impair theexercise of management discretion or to foment unwarrantedlitigation." Sheets v. Teddy's Frosted Foods, Inc.,179 Conn. 471, 477, 427 A.2d 385 (1980). Therefore, courts have beenconcerned about the expansion of this claim in the employmentcontext and have kept a "tight rein" on these claims.Hernandez, 30 F. Supp.2d at 273.

To that end, Connecticut courts have held that "even anemployer's wrongful employment actions are not enough to sustaina claim for negligent infliction of emotional distress." Id.,citing Hill v. Pinkerton Security & Investigation Services,Inc., 977 F. Supp. 148, 159 (D.Conn. 1997). To state a claim fornegligent infliction of emotional distress, the complaint mustinclude allegations of unreasonable conduct in the manner inwhich the employer carried out an employment action. See id.;Parsons, 243 Conn. at 89, 700 A.2d 655; Lopez-Salerno v.Hartford Fire Insurance Co., 1997 WL 766890 at *6 (D.Conn. Dec.8, 1997); Hultgren v. First Fidelity Bank, 1997 WL 766879 at *8(D.Conn. Dec. 2, 1997).

Moreover, to be unreasonable, the employer's conduct must behumiliating, extreme, or outrageous. See Johnson v.Chesebrough-Ponds, Inc., 1996 WL 734043 at *3 (2d Cir. 1996);Parsons, 243 Conn. at 88, 700 A.2d 655 (affirming the trialcourt's striking of an negligent infliction claim, where thetrial court defined unreasonable conduct as humiliating andrejected the suggestion from another court that conduct that isembarrassing or inconsiderate is actionable); Brown v.Nationscredit Commercial Corp., 2000 WL 306947 at *4 (D.Conn.Feb. 8, 2000) ("Connecticut courts have uniformly held extremeand outrageous behavior" is required); Roberts v. AndersenLaboratories, Inc., 1997 WL 663303 at *9 (Conn. Sup.er. Oct.14,1997)("An essential element of the tort is conduct that is extreme andoutrageous.").

Therefore, ordinary employment actions, even if wrongful, donot support a claim for negligent infliction of emotionaldistress absent an employer's egregious conduct in carrying outthose actions. Courts have consistently held that termination fordiscriminatory reasons, without more, is not enough to sustain aclaim for negligent infliction of emotional distress. See, e.g.,Newtown v. Shell Oil Co., 52 F. Supp.2d 366, 367, 375 (D.Conn.1999); Thomas v. St. Francis Hospital and Medical Center,990 F. Supp. 81, 92 (D.Conn. 1998). Courts have also found that thefollowing employment actions, short of termination are nothumiliating, extreme or outrageous as a matter of law: thewrongful refusal to hire based on racial discrimination, Huff v.West Haven Board of Education, 10 F. Supp.2d 117, 124 (D.Conn.1998) (motion to dismiss granted); the failure to place anemployee on an eligibility list for promotions, thereby denyingher a promotion, and the failure to notify the plaintiff of herrights in the appeal process, Stosuy v. City of Stamford, 1999WL 711515 at *4 (Conn. Sup.er. Aug. 30, 1999) (motion to strikegranted); the denial of a pregnant employee's request to work athome upon medical advice due to premature labor, Hernandez, 30F. Supp.2d at 273-74 (judgment as a matter of law granted); andthe promise of a promotion that never occurred, Perillo v.Perkin-Elmer Corp., 1998 WL 846737 at *3 (D.Conn. Dec. 3, 1998)(summary judgment granted).

In Hill v. Pinkerton Security & Investigation Services, Inc.,977 F. Supp. 148, 159 (D.Conn. 1997), the court held that anemployer's alleged unsatisfactory response to anAfrican-American, female security guard employee's complaint of awage differential was not unreasonable as a matter of law. Theplaintiff alleged that this response included revoking theplaintiff's fifteen-minute grace period for signing in,questioning the length of time it took her to complete herduties, restricting her access to her supervisor's office,changing her work post, temporarily transferring her to anotherwork site and then permanently transferring her to yet anotherdifferent location where the plaintiff continued to work at thesame rate of pay. Id. at 151-53. Even though the employee wasnot satisfied with the way in which her employer investigated hercompensation complaint, the court held that "such routineemployment occurrences as the plaintiff experienced were not sounreasonable that the defendant knew or should have known thatits conduct involved an unreasonable risk of causing emotionaldistress which might result in illness or bodily harm." Id. at159.

Based on the allegations of the complaint, construed in thelight most favorable to Miner, the Town's conduct was not sounreasonable that the Town should have known that it involved anunreasonable risk of causing emotional distress that might resultin illness or bodily harm to Miner. First, Miner bases her claimof negligent infliction of emotional distress against the Town onthe same facts underlying her claims of discriminatory conduct.See Am.Compl. ¶¶ 1-79. Miner claims against the Town are that,after (1) conducting an investigation of Miner's complaints ofsexual harassment, (2) placing Deegan on paid leave, and (3)placing certain restrictions on Deegan upon his return, the Towndid nothing further to stop the alleged harassment. Miner furtheralleges that the Town questioned the severity and origin of herWorkers' Compensation claim and thereafter contested that claim,treating her differently from male individuals. Miner alsoalleges that, following the March 29, 1999 incident, the Townaccused her of insubordination and neglect of duty; notified herthat there were no work restrictions placed on Deegan; andthreatened her job based solely on Deegan's March 29th warning.Miner alleges that the Town's conduct was in retaliation for herfiling a complaint withthe CHRO and EEOC. Miner also alleges that the Town was wellaware of Deegan's harassment, but failed to take adequateremedial measures or provide adequate training; and failed toprovide an appropriate mechanism for the reporting of incidentsof sexual harassment in the workplace.

Simply put, this is not enough to support a claim of negligentinfliction of emotional distress. In the absence of allegationsof facts indicating that the Town conducted routine employmentactivities in a humiliating, extreme, or outrageous manner, thecomplaint does not state a claim for negligent infliction ofemotional distress. Miner's claims that the Town did not takeappropriate steps to address the alleged harassment; contestedher Workers' Compensation claim; and did not appropriatelyrespond to her complaints are not extreme or outrageous as amatter of law. See Hill, 977 F. Supp. at 159. Nor are Miner'sadditional allegations, that the Town threatened her job basedsolely on Deegan's warning, legally sufficient. Miner has allegedno supporting facts that the Town acted in a humiliating,extreme, or outrageous manner. In short, Miner's allegations donot rise to the required level of unreasonableness to state aclaim for negligent infliction of emotional distress. SeeThomas, 990 F. Supp. at 92; Perillo, 1998 WL 846737 at *3.

For the foregoing reasons, Miner's claim of negligentinfliction against the Town fails. The motion to dismiss isgranted in favor of the Town on Count Five.

Assault and Battery

In Count Six, Miner alleges that Deegan's conduct constitutedthe intentional torts of battery and assault. Am.Compl. at 14-15,¶¶ 80-81. Miner alleges that the "Cheshire Police Department isresponsible for Deegan's conduct to the extent that it knew ofthe risk that he would harass plaintiff but did not makereasonable efforts to prevent it." Am.Compl. at 15, ¶ 83. Mineralleges that the "Cheshire Police Department is responsible forthe intentional tortious conduct of Mr. Deegan in respondeatsuperior." Am.Compl. at 15, ¶ 84.

As noted above, section 52-557n(a)(2)(A) provides in relevantpart that "a political subdivision of the state shall not beliable for damages to person or property caused by . . . [a]ctsor omissions of any employee, officer or agent which constitutecriminal conduct, fraud, actual malice or willful misconduct . .." Conn.Gen.Stat. § 52-557n(a)(2)(A).

Count Six expressly alleges a cause of action predicated uponalleged intentional acts by Deegan. The motion to dismiss theclaims of assault and battery as against the Town is granted onthe ground that section 52-557n(a)(2)(A) specifically exempts theTown from liability for such willful, intentional misconduct ofits employees as is alleged in Count Six.

Counts Three, Seven and Eight — Supplemental Jurisdiction

The Town urges the court to decline supplemental jurisdictionover any remaining state law claims pursuant to 28 U.S.C. § 1367.Because the court has subject matter jurisdiction over theplaintiff's Title VII claims, and because the surviving state lawclaims arise from the same nucleus of operative facts, the court,in its discretion, will retain jurisdiction over the remainingstate law claims in the interests of judicial economy.5

Deegan's Motion to Dismiss

Deegan has moved to dismiss Counts One, Two and Three of theplaintiff's initial complaint. These counts are, respectively:sexual harassment in violation of Title VII, retaliation inviolation of Title VII and sexual harassment and retaliation inviolation of CFEPA, respectively. Because they set forth the samecauses of action, the court treats Deegan's Motion to Dismiss asdirected at Counts One, Two and Three of the plaintiff's amendedcomplaint.

Counts One and Two — Individual Liability Under Title VII

Deegan moves to dismiss Counts One and Two, alleging sexualharassment and retaliation under Title VII, on the grounds thatTitle VII does not provide a right of action against Deeganpersonally, citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313(2d Cir. 1995). Although Miner concedes that Tomka "is the mostcurrent Second Circuit decision on individual liability underTitle VII and is therefore precedent for this Court to follow,"Pl.'s Memorandum in Opposition to Defendant Deegan's Motion toDismiss at 9, she argues that the Circuit Courts of Appeals aredivided on the issue and that the Supreme Court has not yetresolved the question. Id. Miner further argues that Tomka isdistinguishable because "the individual defendants in Tomkawere characterized as `co-employees' and none was the directsupervisor of plaintiff with respect to conditions of heremployment." Id. Here, she claims, Deegan had supervisorycontrol over her.

The court is not persuaded that individual liability underTitle VII may extend to Deegan. In Tomka v. Seiler Corp.,66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds,Burlington Ind. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141L.Ed.2d 633 (1998), the Second Circuit held that "individualdefendants with supervisory control over a plaintiff may not beheld personally liable under Title VII." The Court noted thatTitle VII specifically limited liability to employer-entitieswith 15 or more employees. Id. at 1314, citing 42 U.S.C. § 2000e(b).In light of Congress' concern to avoid subjecting smallemployers to the burdens of Title VII, the Court reasoned that itwas inconceivable that Congress would simultaneously allow civilliability to run against individual employees. Id.; see alsoMcBride v. Routh, 51 F. Supp.2d 153, 156 (D.Conn. 1999), citingNorthup v. Connecticut Commission on Human Rights &Opportunities, No. 3:97CV211(DJS), 1998 WL 118145 at *3 (D.Conn.Feb. 2, 1998); Friel v. St. Francis Hospital, No.3:97CV803(DJS), 1997 WL 694729 at *3 (D.Conn. Oct. 31, 1997);Schaffer v. Ames Department Stores, Inc., 889 F. Supp. 41, 44(D.Conn. 1995). The Tomka Court dismissed the plaintiff's TitleVII claims against her three supervisors, whom she had sued intheir corporate as well as their individual capacities.

What the Second Circuit has not yet addressed is the specificissue whether a plaintiff may assert a Title VII claim against anindividual supervisor in his or her official capacity.6Courts in this District, however, have rejected such claims.See, e.g., McBride, 51 F. Supp.2d at 156-57; Schaffer, 889F. Supp. at 43-46. "Other district courts within this Circuit havereached conflicting results, although the recent trend in TitleVII cases has been to disallow official capacity claims againstnon-employer individuals." McBride, 51 F. Supp.2d at 156-57(collecting cases). The court is persuaded by the casesdisallowing such official capacity claims. Tomka and thelanguage of Title VII compel a holding that onlyemployer-entities have liability under Title VII. Thus, Miner maynot assert a Title VII claim against Deegan in her individual orofficial capacity. Miner's claim for Title VII discrimination isagainst her employer, not against an individual supervisor.Accordingly, Counts One and Two alleging sexual harassment andretaliation against Deegan must be dismissed.

Count Three — Individual Liability Under CFEPA

Deegan similarly seeks to dismiss Count Three against himpersonally on the ground that there is no individual supervisoryliability under CFEPA.

The Connecticut appellate courts have yet to rule on thequestion whether supervisory employees can be held individuallyliable under CFEPA. There is also disagreement among the lowerConnecticut courts that have considered the issue. See Wasik v.Stevens Lincoln-Mercury, Inc., No. Civ. 3:98cv1083(DJS), 2000 WL306048 (D.Conn. Mar. 20, 2000), comparing Le v. ConnecticutDept. of Transportation, No. CV980491121S, 1999 WL 619631, at *3(Conn. Sup.er.Ct. Aug. 4, 1999) (holding that supervisory employeeis not an employer under the terms of CFEPA, and because theemployer is liable for the employee's actions, a plaintiff maynot maintain an action against the employee individually underConn.Gen.Stat. § 46a-60); Nwachukwu v. State of ConnecticutDepartment of Labor, No. CV-970573595S, 1997 WL 803857, at *2(Conn. Sup.er.Ct. Dec. 17, 1997) (finding that the plain languageof section 46a-60(a)(1) indicates that employers are responsiblefor the actions of their employees, and that there is no languagein the section making employees liable individually);Martinez-Duffy v. DeJesus, No. 545193, 17 Conn.L.Rptr. 64,65-66 (Conn. Sup.er.Ct. May 1, 1996) (finding supervisor notsubject to individual liability under Conn.Gen.Stat. § 46a-60because supervisors are not employers and are not the intendeddefendants within the meaning of CFEPA); and Walters v.Homestaff Health Care, No. CV 950146961S, 1996 WL 88058 at *4(Conn. Sup.er.Ct. Feb. 8, 1996) (finding supervisory employee notliable under the plain meaning of section 46a-60a(8) because hewas not an employer), with Dombrowski v. Envirotest System, No.CV 980412518, 1999 WL 643394, at *2 (Conn. Sup.er.Ct. Aug. 10,1999) ("The specific language of § 46a-60(a)(4) prohibiting any`person' from discharging, expelling or otherwise discriminatingagainst any person because he has opposed any discriminatoryemployment practice, leads to the conclusion that a cause ofaction against an individual is permitted under this section."),and Lueneburg v. Mystic Dental Group, No. CV 535839, 1996 WL456967, at *4-5 (Conn. Sup.er.Ct. Aug. 1, 1996) (construing theremedial provision of CFEPA to allow supervisory employees to beheld individually liable); see also Kavy v. New Britain Bd. ofEd., No. CV990492921S, 1999 WL 619587, at *5-6 (Conn. Sup.er.Ct.Aug.3, 1999) (finding supervisory employees are not employerswithin the meaning of CFEPA, and therefore not liable undersections 46a-60(a)(8) and 46a-81c, but they are persons withinthe meaning of the Act, and may therefore be liable undersections 46a-60(a)(4), and (5)); Sefsik v. Fiandra, No. 326723,1998 WL 481880, at *1-2 (Conn. Sup.er.Ct. Aug. 5, 1998) (findingthere is no individual supervisory liability under Conn.Gen.Stat.section 46a-60(a)(1) because individual defendants are notemployers under CFEPA, but they may be liable under section46a-60(a)(4) because this section specifically includes the term"persons" as potentially liable parties).

In Wasik v. Stevens Lincoln-Mercury, Inc., No. Civ.3:98cv1083(DJS), 2000 WL 306048 (D.Conn. Mar. 20, 2000), an agediscrimination case, the court, in the absence of controllingprecedent, determined how the Connecticut Supreme Court woulddecide the issue. Id. at *6, citing Continental Cas. Co. v.Pullman, Comley, Bradley & Reeves, 929 F.2d 103, 105 (2d Cir.1991). The court noted that, "[g]enerally, Connecticut courtslook to case law involving federal legislation to interpret theirstate's anti-discrimination statute." Wasik, 2000 WL 306048 at*6, citing Bridgeport Hosp. v. Commission on Human Rights andOpportunities, 232 Conn. 91, 108, 653 A.2d 782 (1995). The courtalso noted, however, that "the Connecticut Supreme Court has alsostated that `under certain circumstances, federal law definesthe beginning and not the end of our approach to the subject.'"Wasik, 2000 WL 306048 at *6, citing State v. Commission onHuman Rights and Opportunities, 211 Conn. 464, 469-70,559 A.2d 1120 (1989).

The court reasoned that, in contrast to the federal AgeDiscrimination in Employment Act ("ADEA"), the definition of"employer" under CFEPA reaches "the state and all politicalsubdivisions thereof and any person or employer with three ormore persons in his employ." Conn.Gen. Stat. § 46a-51(10). Thecourt noted that "[a]t least one court has found significant thefact that an employer need only employ three employees to fitwithin CFEPA's definition of an employer, and has interpretedthis difference as an indication that the Connecticut legislatureintended to provide for supervisory liability." Wasik, 2000 WL306048 at *6, citing Lueneburg, 1996 WL 456967, at *3 ("Thestatutory definitions and remedies provided for under the CFEPAare significantly different from the ADEA and Title VII and thesedifferences are intended to express a legislative intent to allowsupervisory employees to be held individually liable fordiscrimination."). The court stated, however, that although"CFEPA's definition of an employer is significantly moreinclusive than the ADEA definition, it should not be concludedbased on this factor alone that the Connecticut legislatureintended this difference to signify the inclusion of individualsupervisors for purposes of liability. Instead, this ambiguityshould be clarified by examining the remaining provisions ofCFEPA and, thus, viewing the Statute as a whole." Wasik, 2000WL 306048 at *6.

Reviewing the remaining provisions of CFEPA, the Wasik courtfound that, although Conn.Gen.Stat. § 46a-60(a)(1) makes itunlawful for "an employer, by himself or his agent," to dischargeor discriminate against an individual in compensation or in theterms, conditions, or privileges of employment on the basis ofage, "other CFEPA provisions expressly extend liability fordiscriminatory acts to individual persons, regardless of whetherthey are employers." Wasik, 2000 WL 306048 at *6, citingConn.Gen.Stat. § 46a-60(a)(4) (it shall be a discriminatoryemployment practice under CFEPA "[f]or any person, employer,labor organization or employment agency to discharge, expel orotherwise discriminate against any person because he has opposedany discriminatory employment practice"); Conn.Gen. Stat. §46a-60(a)(5) (it shall be a discriminatory practice "[f]or anyperson, whether an employer or an employee or not, to aid,abet, incite, compel or coerce the doing of any act declared tobe a discriminatory employment practice or to attempt to do so");Conn.Gen.Stat. § 46a-60(a)(6) (it shall be a discriminatorypractice "[f]or any person, employer, employment agency orlabor organization . . . to advertise employment opportunities insuch a manner as to restrict such employment so as todiscriminate against individuals") (emphasis added). The courtfound that "[t]his distinction in the choice of language issignificant. It is a basic rule of statutory construction thatwhen the legislature had an opportunity to include a class ofentities in its prohibition against certain acts, but did not doso, the legislature intended, by omission, not to include suchclass." Id.

Applying this rule to the question before the court, andviewing the statute as a whole, the Wasik court concluded that"the legislature, by failing to extend liability expressly to`persons' in § 46a-60(a)(1), and instead limiting liability inthat section to employers, by themselves or through their agents,did not intend to hold employees, whether supervisory or not,individually liable under § 46a-60(a)(1)." Id. at *7. The courttherefore held that the defendant could not be held individuallyliable under the plaintiff's CFEPA claim pursuant to section46a-60(a)(1).7 Id.; seealso Cox v. Namnoun, No. 3:95CV37 (AVC), slip op. at 12(D.Conn. Sept. 26, 1996) (noting that the Connecticut legislatureextended liability to "any person" in other sections of CFEPA,but only to an "employer" in section 46a-60(a)(1), and concludingthat section 46a-60(a)(1) does not provide for individualsupervisory liability). But see Swanson v. Envirotest Sys.Inc., No. 3:98CV751(AHN), 1998 WL 928415, at *3 (D.Conn. Dec.18, 1998); Armstrong v. Chrysler Fin. Corp., No.3:97CV1557(AHN), 1998 WL 342045 at *4 (D.Conn. May 14, 1998);Murphy v. Burgess and Norwalk Economic Opportunity, Inc., No.3:96CV1987(AHN), 1997 WL 529610 at *3-5 (D.Conn. July 16, 1997)(holding in Murphy, and declining to reconsider in Swanson andArmstrong that, in light of the differences between the statutoryscheme and remedial provisions of CFEPA and Title VII, CFEPA'sdiscrimination provisions were intended to impose individualliability on supervisors who hold positions of power, control,and authority, and who use that power, control, and authority toengage in the conduct giving rise to a discrimination claim);Thompson v. Service Merchandise, Inc., No. 3:96CV1602(GLG),1998 WL 559735, at *4 (D.Conn. Aug. 11, 1998) (sua spontegranting summary judgment with respect to Title VII claimsagainst individual supervisors, but preserving claims againstsupervisors under CFEPA based on holding in Murphy, supra, thatsupervisors may be held individually liable under CFEPA).

After careful analysis, this court finds the reasoning ofWasik to be persuasive and applicable with equal force toMiner's claims of sexual harassment and retaliation under CFEPA.In Count Three, Miner alleges violations of sections 46a-60(1),(4), (5) and (8). Section 46a-60(1) however, makes it unlawfulfor "an employer, by himself or his agent," to discharge ordiscriminate against an individual in compensation or in theterms, conditions, or privileges of employment on the basis ofage. Similarly, section 46a-60(8) makes it unlawful for "anemployer, by himself or his agent, for an employment agency, byitself or its agent, or for any labor organization, by itself orits agent to harass any employee, person seeking employment ormember on the basis of sex." Conn.Gen.Stat. § 46a-60(8). Thelegislature, by failing to extend liability expressly to"persons" in sections 46a-60(a)(1) and (8) and instead limitingliability in that section, did not intend to hold employees,whether supervisory or not, individually liable. Moreover, thefact that the Connecticut legislature extended liability to "anyperson" in other sections of CFEPA, but did not do so in sections46a-60(a)(1) and (8) is significant. Accordingly, section46a-60(a)(1) and (8) do not provide for individual supervisoryliability.

Although there is no individual supervisory liability undersections 46a-60(a)(1) and (8), recovery against a supervisoryemployee may be cognizable under the retaliation provisioncontained in section 46a-60(a)(4) and under the aiding andabetting provision contained in section 46a-60(a)(5). SeeWasik, 2000 WL 306048 at *7; see also Cullen v. Putnam SavingsBank, Inc., No. 3:96cv2315 (AHN), 1997 WL 280502 at *5 (D.Conn.May 17, 1997) (finding supervisor may be individually liable foraiding and abetting discrimination under section 46a-60(a)(5)).Section 46a-60(a)(4) makes it unlawful for "any person,employer, labor organization or employment agency to discharge,expel or otherwise discriminate against any person because he hasopposed any discriminatory employment practice or because he hasfiled a complaint or testified or assisted in any proceeding . .." in connection therewith. Conn.Gen.Stat. § 46a-60(a)(4)(emphasis added); see also Wasik, 2000 WL 306048 at *7 n. 6 (Inaddition to section 46a-60(a)(5), "[r]ecovery against individualpersons may also be authorized underConn.Gen.Stat. §§ 46a-60(a)(4) and (6). However these subsectionsof CFEPA, addressing retaliation and job advertisement, areentirely unrelated to the case at bar."). Similarly, undersection 46a-60(a)(5) it is a violation of CFEPA "[f]or anyperson, whether an employer or an employee or not, to aid,abet, incite, compel or coerce the doing of any act declared tobe a discriminatory employment practice or to attempt to do so."Conn.Gen.Stat. § 46a-60(a)(5) (emphasis added). Accordingly,recovery against a supervisory employee is cognizable under thisaiding and abetting provision of CFEPA. Wasik, 2000 WL 306048at *7. Viewing the allegations of Miner's amended complaint inthe light most favorable to her, the court cannot conclude atpresent that the plaintiff can prove no set of facts in supportof her section 46a-60(a)(4) and (5) claims which would entitleher to relief. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994), cert. denied, 513 U.S. 836, 115 S.Ct. 117, 130 L.Ed.2d63 (1994). Dismissal at this stage, therefore, is inappropriatewith respect to those claims.

Because section 46a-60(a)(1) and (8) do not provide forindividual supervisory liability, Miner has not alleged a viableclaim under CFEPA against Deegan individually, and these claimsin Count Three are dismissed. Deegan's motion to dismiss withrespect to Miner's CFEPA claims under sections 46a-60(a)(4) and(5), however, is denied.8

CONCLUSION

For the foregoing reasons, the Town's Motion to Dismiss (doc.#12) is GRANTED IN PART and DENIED IN PART. Deegan's Motion toDismiss (doc.# 14) is GRANTED IN PART and DENIED IN PART.

The following causes of action are dismissed: (1) Count One,alleging claims under Title VII for sexual harassment against theTown. This claim against the Town is dismissed, however, withoutprejudice to the filing of an amended complaint that alleges,with the requisite clarity and specificity, a continuingviolation for the sexual harassment claims; (2) Count One,alleging claims under Title VII for sexual harassment againstDeegan; (3) Count Two alleging claims under Title VII forunlawful retaliation is dismissed as against Deegan only; (4)Count Three, insofar as it alleges claims against the Town forsexual harassment under CFEPA. This claim against the Town isdismissed, however, without prejudice to the filing of an amendedcomplaint that alleges, with the requisite clarity andspecificity, a continuing violation for the sexual harassmentclaims; (5) Count Three, alleging claims under sections46a-60(a)(1) and (8) of CFEPA are dismissed as against Deegan;(6) Count Four, alleging intentional infliction of emotionaldistress against the Town; (7) Count Five, alleging negligentinfliction of emotional distress against the Town; and (8) CountSix, alleging battery and assault against the Town.

The following claims survive the motion to dismiss: (1) CountTwo, alleging claims under Title VII for unlawful retaliationagainst the Town; (2) Count Three, alleging claims other thansexual harassment against the Town under CFEPA; (3) Count Threealleging claims under sections 46a-60(a)(4) and (5) of CFEPAagainst Deegan; (4) Count Four, alleging intentional inflictionof emotional distress against Deegan; (5) Count Five, allegingnegligent infliction of emotional distress against Deegan; (6)Count Six, alleging battery and assault against Deegan; (7) CountSeven alleging negligent supervision against the Town; (8) CountEight alleging a breach of the implied covenant of good faith andfair dealing against the Town; and (9) Count Nine allegingdefamation against Deegan.

The plaintiff shall file a second amended complaint consistentwith this ruling by October 31, 2000.9

It is so ordered.

1. The pending motions are directed at the initial complaintand the parties never sought leave to treat them as directed atthe amended complaint. The motions could therefore be denied asmoot and without prejudice to refiling in light of theplaintiffs' Amended Complaint. Nevertheless, because the court isinclined to consider the claims of the motions on the meritsrather than decline to hear them on procedural grounds that mayonly serve to delay this matter further, the court considers andinterprets the pending motions as if directed at the AmendedComplaint.

2. "Of course, all allegations in any such amended complaintshall be `well grounded in fact' and made only after `areasonable and competent inquiry.'" Urashka, 841 F. Supp. at 473n. 5, citing Fed.R.Civ.P. 11; Bolden v. Morgan Stanley & Co.,765 F. Supp. 830, 834 (S.D.N.Y. 1991).

3. In her amended complaint, Miner has begun the paragraphnumbering of each count with paragraph 1. Accordingly, in thisdecision, references to the amended complaint recite both thepage and paragraph number.

4. Section 52-557n(a) provides, in pertinent part:

(1) Except as otherwise provided by law a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties. . . .

(2) "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."

Conn.Gen.Stat. § 52-557n(a) (emphasis added).

5. The Town asked "that Count Eight be dismissed because Minerhas failed to use any procedures in her collective bargainingagreement to remedy this situation." Memorandum of Law in Supportof Defendants' [sic] Motion to Dismiss at 2. Other than thisstatement, this issue was not raised by the Town, nor was itbriefed by the parties. Accordingly, the Town's request todismiss Count Eight on this ground is denied without prejudice.

6. Miner has not made any distinction between official andindividual capacity in her amended complaint.

7. The court noted that "a supervisory employee does not meetthe definition of employer because, by definition, he does notemploy three or more employees." Wasik, 2000 WL 306048 at *7,citing Conn.Gen.Stat. § 46a-51(10).

8. The court declines to consider Deegan's additional argumentthat CFEPA is unconstitutional on its face at this juncture.Accordingly, Deegan's Motion to Dismiss on this ground is deniedwithout prejudice to raising this claim in a future dispositivemotion.

9. The plaintiff's complaint shall only be amended toeliminate the claims dismissed by this ruling and to assert, withthe requisite clarity and specificity, a continuing violation forthe sexual harassment claims. Any other substantive request toamend the plaintiff's complaint must be made by formal motionseeking leave to amend.

RULING ON MOTIONS TO DISMISS

Plaintiff Margaret Miner ("Miner") brings this action seekingdamages and other relief in connection with alleged sexualharassment and retaliatory conduct in violation of Title VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e etseq., and the Connecticut Fair Employment Practices Act("CFEPA"), Conn.Gen.Stat. § 46a-60. Miner also seek damages andother relief for the following causes of action under Connecticutcommon law: intentional infliction of emotional distress;negligent infliction of emotional distress; civil battery andassault; negligent supervision; breach of the implied covenant ofgood faith and fair dealing and defamation. Currently pending isthe defendant Town of Cheshire's ("the Town") Motion to Dismiss(doc.# 12) and the defendant Kerry Deegan's ("Deegan") Motionto Dismiss (doc.# 14). For the reasons stated herein, theTown's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.Deegan's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Facts

For the purposes of the motions to dismiss, the court assumesthe following facts set forth in the plaintiff's amendedcomplaint to be true. Miner was employed as a police officer withthe Town of Cheshire Police Department. Deegan is a Lieutenantwith the Cheshire Police Department and was the plaintiff's ShiftCommander.

Miner alleges that, in August 1997, Deegan forced Miner to kisshim in an elevator. At or around the same time, Deegan grabbedMiner's hand and placed it on his crotch. Miner alleges that, onat least one occasion, Deegan grabbed one of plaintiff's breasts.Miner alleges that, on severaloccasions, Deegan drove by her house and made numerous phonecalls to the plaintiff at her home.

Miner repeatedly told Deegan to leave her alone.Notwithstanding her protests, Deegan continued to harass theplaintiff and to make various overtures towards her. Accordingly,Miner complained to the Cheshire Police Department on severaloccasions. The Cheshire Police Department conducted aninvestigation and certain restrictions were placed upon Deegan.Specifically, Deegan was not to work the same shifts as Minerand, for some period of time, Deegan was placed on paid leave.Miner alleges that, upon Deegan's return from paid leave,however, the harassment continued.

Miner claims that, in retaliation for her reporting the allegedsexual harassment, Deegan began to spread false rumors about herthroughout the police force and the Cheshire community.

On May 19, 1998, Miner injured her back while working andsubsequently filed a workers' compensation claim for the injuriesshe sustained. Miner alleges that Deegan and the Cheshire PoliceDepartment questioned the origin and severity of her injuriesand, to this date, have contested Miner's workers' compensationclaim. Miner alleges that the defendants contest her claimbecause she is a female and because she pursued her sexualharassment complaint. She alleges that similar workers'compensation complaints by male officers have not been contested.

Miner alleges that she was forced to leave her job as a policeofficer because of the sexual harassment, the defendants'response to her complaints, and the emotional distress shesustained because of the harassment. Moreover, Miner claims thatharassment from other management officials created a hostile workenvironment that made it impossible for her to perform her jobduties or for her to reasonably believe that her complaints ofsexual harassment would be taken seriously.

On or about December 21, 1998, Miner filed complaints with theConnecticut Commission on Human Rights and Opportunities ("CHRO")and the Equal Employment Opportunities Commission ("EEOC"). Inresponse to these complaints, the Town offered Miner her job backwith the same work restrictions placed upon Deegan as before.Relying on representations that Deegan would not harass her andthat she would suffer no retaliation, Miner withdrew from collegeand returned to the Cheshire Police Department.

On or about March 29, 1999, a fellow officer asked Miner toswitch shifts with him for that day. Although Miner would beworking on Deegan's shift, Miner agreed to work that night. AnOfficer Fasano, knowing about the work restrictions on Deegan,agreed with Miner to work at the dispatch desk with Deegan thatnight. Notwithstanding this arrangement, Deegan demanded thatMiner work alone with Deegan at the front desk. Miner refused towork alone with Deegan. When Deegan insisted, Miner left thepolice station. Deegan issued a written reprimand of theplaintiff for insubordination and neglect of duty.

The next day, the Cheshire Police Department, in light ofDeegan's written warning, accused Miner of insubordination andneglect of duty. The Cheshire Police Department informed Minerthat there were no work restrictions on Deegan. Miner allegesthat the hostile and offensive work environment created by Deeganforced her to resign.

DISCUSSION

Standard for a Motion to Dismiss

A motion to dismiss for failure to state a claim pursuant toFed.R.Civ.P. 12(b)(6) should be granted only if "it is clear thatno relief could be granted under any set of facts that could beproved consistent with the allegations." Hishon v. King &Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).The function of a motion to dismiss is "merely to assess thelegal feasibility of a complaint, not to assay the weight ofevidence which might be offered in support thereof." RyderEnergy Distribution Corp. v. Merrill Lynch Commodities, Inc.,748 F.2d 774, 779 (2d Cir. 1984), quoting Geisler v.Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). The motion musttherefore be decided solely on the facts alleged. See Goldman v.Belden, 754 F.2d 1059, 1065 (2d Cir. 1985).

When deciding a motion to dismiss for failure to state a claimon which relief can be granted, the court must accept thematerial facts alleged in the complaint as true, and allreasonable inferences are drawn and viewed in a light mostfavorable to the plaintiff. Leeds v. Meltz, 85 F.3d 51, 53 (2dCir. 1996); Staron v. McDonald's Corp., 51 F.3d 353, 355 (2dCir. 1995); Skeete v. IVF America, Inc., 972 F. Supp. 206, 207(S.D.N.Y. 1997). The court "must not dismiss the action `unlessit appears beyond doubt that the plaintiff can prove no set offacts in support of [the plaintiff's] claim which would entitle[the plaintiff] to relief.'" Cohen v. Koenig, 25 F.3d 1168,1172 (2d Cir. 1994). The issue is not whether the plaintiff willprevail, but whether she should have the opportunity to prove herclaims. See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2L.Ed.2d 80 (1957).

The Town's Motion to Dismiss

The Town moved to dismiss Counts One, Three, Four, Five, Six,Seven and Eight of the plaintiff's initial complaint. Thesecounts are, respectively: sexual harassment in violation of TitleVII, sexual harassment and retaliation in violation of CFEPA,intentional infliction of emotional distress, negligentinfliction of emotional distress, civil battery and assault,negligent supervision and breach of the implied covenant of goodfaith and fair dealing. Because they set forth the same causes ofaction, the court treats the Town's Motion to Dismiss as directedat Counts One, Three, Four, Five, Six, Seven and Eight of theplaintiff's Amended Complaint.1

Counts One and Three (Sexual Harassment in Violation of TitleVII and CFEPA)

The Town argues that Miner's claims of sexual harassment in1997 are barred by the applicable limitations period. The Townclaims that complaints must be filed with the EEOC within 300days of an alleged violation if a complaint first has been filedwith a comparable state commission such as the CHRO. Similarly,they argue that the CHRO has a 180-day "lookback" period thatalso operates as a statute of limitations.

The Town argues that Miner first filed her complaint with theCHRO on December 21, 1998. Accordingly, the 300-day EEOC periodcovers violations occurring after February 24, 1998 and the CHROperiod covers back to June 23, 1998. Miner's complaint, however,alleges incidents of sexual harassment that allegedly occurred inAugust and September 1997. Thus, the Town argues, such conduct isoutside the scope of either limitations period.

In opposition, Miner argues that her allegations are timelypursuant to the continuing violations doctrine.

Because federal law on this issue is applicable to CFEPA, thecourt will analyze counts one and three together. See Maloney v.Connecticut Orthopedics, P.C., 47 F. Supp.2d 244, 247 (D.Conn.1999), citing Malasky v. Metal Products Corp.,44 Conn. App. 446, 454, 689 A.2d 1145 (1997),cert. denied, 241 Conn. 906, 695 A.2d 539 (1997).

Statute of Limitations

Title VII requires plaintiffs to exhaust administrativeremedies prior to filing an action for damages in federal court.See 42 U.S.C. § 2000e-5; Zipes v. Trans World Airlines, Inc.,455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Brownv. General Services Admin., 425 U.S. 820, 832-33, 96 S.Ct. 1961,48 L.Ed.2d 402 (1976); Blake-McIntosh v. Cadbury Beverages,Inc., No. 3:96cv2554(EBB), 1999 WL 643661 at *6 (D.Conn. 1999).First, the plaintiff must file a complaint with a state or localfair employment opportunity commission if one exists. See42 U.S.C. § 2000e-5(c); Great American Fed. Sav. & Loan Ass'n v.Novotny, 442 U.S. 366, 373, 99 S.Ct. 2345, 60 L.Ed.2d 957(1979); Blake-McIntosh, 1999 WL 643661 at *6. Second, theplaintiff must file a timely charge of discrimination with theEEOC. See 42 U.S.C. § 2000e-5(e); Blake-McIntosh, 1999 WL643661 at *6. Finally, the plaintiff must receive a right-to-sueletter from the EEOC and file suit within 90 days. See42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Center v. Brown,466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984);Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct.1011, 39 L.Ed.2d 147 (1974); Blake-McIntosh, 1999 WL 643661 at*6.

Where the plaintiff first files discrimination charges with astate agency, district courts may hear only those claimsinvolving discriminatory acts that were raised before the EEOCand that occurred within 300 days of the date the EEOC charge wasfiled. See 42 U.S.C. § 2000e-5(e); Quinn v. Green Tree CreditCorp., 159 F.3d 759, 765 (2d Cir. 1998). To determine thetimeliness of an EEOC complaint and an ensuing lawsuit, the courtmust identify the dates on which the alleged discriminatory actstook place. See Delaware State College v. Ricks, 449 U.S. 250,256-62, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Blake-McIntosh,1999 WL 643661 at *6.

Miner filed her EEOC charge on December 21, 1998, seeAm.Compl. ¶ 46, thus preserving her right to seek judicial reviewof those acts transpiring on or after February 24, 1998. See VanZant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996); Blake-McIntosh, 1999 WL 643661 at *6. The plaintiff'sclaims based upon sexual harassment allegedly occurred in Augustand September 1997 and, accordingly are time-barred because theyhappened prior to February 24, 1998. Miner argues, however, thatthese acts were committed as part of a "continuing violation."

Continuing Violation

"[F]iling a timely charge of discrimination with the EEOC isnot a jurisdictional prerequisite to suit in federal court, but arequirement that, like a statute of limitations, is subject towaiver, estoppel, and equitable tolling." Zipes, 455 U.S. at393, 102 S.Ct. 1127. A limitations period may be tolled byoffering evidence of a "continuing violation," so long as atleast one allegation falls within the appropriate statutoryperiod. See Delaware State College v. Ricks, 449 U.S. 250, 257,101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Carrasco v. New York CityOff-Track Betting Corp., 858 F. Supp. 28, 31 (S.D.N.Y. 1994),aff'd, 50 F.3d 3 (2d Cir. 1995); Martinez v. UnitedTechnologies Corp., Pratt & Whitney Aircraft Division, No. Civ3:97cv02471(AHN), 1998 WL 342043 at *2 (D.Conn. 1998); Wingfieldv. United Techs. Corp., 678 F. Supp. 973, 979 (D.Conn. 1988). Thecontinuing violations doctrine extends "the limitations periodfor all claims of discriminatory acts committed under an ongoingpolicy of discrimination even if those acts, standing alone,would have been barred by the statute of limitations." Annis v.County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998)(internal brackets and quotations omitted).

A continuing violation may be found "where there is proof ofspecific ongoing discriminatory policies or practices,or where specific and related instances of discrimination arepermitted by the employer to continue unremedied for so long asto amount to a discriminatory policy or practice." Cornwell v.Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Examples ofcontinuing violations cited with approval by the Second Circuitinclude use of discriminatory seniority lists or employmenttests. See Van Zant, 80 F.3d at 713; Lambert v. GeneseeHosp., 10 F.3d 46, 53 (2d Cir. 1993). Discrete incidents or evensimilar multiple incidents of discrimination that do not resultfrom discriminatory policies or mechanisms, however, do notamount to a continuing violation. See Quinn, 159 F.3d at 765;Cornwell, 23 F.3d at 704. Moreover, courts in this circuitdisfavor application of the continuing violations doctrine andhold that only compelling circumstances warrant use of thisexception to the statute of limitations. See, e.g., Sharkey v.Lasmo (AUL Ltd.), 992 F. Supp. 321, 334 (S.D.N.Y. 1998);Martinez, 1998 WL 342043 at *2; Bawa v. Brookhaven Nat'lLaboratory Associated Univs., Inc., 968 F. Supp. 865, 868(E.D.N.Y. 1997); Samimy v. Cornell Univ., 961 F. Supp. 489, 494(W.D.N.Y. 1997); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408,1415 (S.D.N.Y. 1989).

"[A] continuing violation can be established by showing either(1) that the . . . incidents of discrimination against plaintiffconstitute a series of related acts or (2) that defendant'sactions were taken pursuant to the maintenance of adiscriminatory system both before and during the limitationperiod." Martinez, 1998 WL 342043 at *2, citing Wingfield v.United Techs. Corp., 678 F. Supp. 973, 979 (D.Conn. 1988); seealso Urashka v. Griffin Hospital, 841 F. Supp. 468, 472 (D.Conn.1994) ("To establish a continuing violation a plaintiff wouldhave to show a series of related acts, one or more of which fallswithin the limitations period, or the maintenance of adiscriminatory system both before and during the limitationsperiod.") (internal brackets and quotations omitted; citationsomitted).

In order to claim that discriminatory acts constitute a seriesof related acts, "it must be clear that the acts complained ofare not completed, distinct occurrences." Martinez, 1998 WL342043 at *2, quoting Yokum v. St. Johnsbury Trucking Co.,595 F. Supp. 1532, 1534 (D.Conn. 1984). In addition, "[a] continuingviolation . . . may not be based on the continuing effects of anearlier discrimination or on a completed act of discrimination."Martinez, 1998 WL 342043 at *2, citing United Air Lines v.Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977);Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907-08 (2d Cir.1997) ("[a] continuing violation is not established merelybecause an employee continues to feel the effects of adiscriminatory act"); Blesedell, 708 F. Supp. at 1414; Shelfordv. New York State Teachers Retirement System, 889 F. Supp. 81, 85(S.D.N.Y. 1993) ("the mere continuation of a discriminatory act'seffect, however painful those effects may be, is not sufficientto rescue a stale claim concerning a violation that occurredprior to the limitations period."); Malarkey v. Texaco, Inc.,559 F. Supp. 117, 120 (S.D.N.Y. 1982) (recognizing that "thecritical question is whether any present violation exists"),aff'd, 704 F.2d 674 (2d Cir. 1983).

As currently pled, the only specific acts of sexual harassmentset forth in the amended complaint are distinct occurrences thatwere completed in or around August or September 1997. Miner setsforth no specific acts of sexual harassment that occurred afterthis time. Rather, the remaining claims set forth in the amendedcomplaint are pled in terms of retaliation — for which Minerhas brought separate causes of action. See, e.g., Am.Compl. ¶34 ("In retaliation for filing a complaint of sexualharassment, Mr. Deegan began to spread false rumors about theplaintiff throughout the police force and throughout the Cheshirecommunity.") (emphasis added); Am.Compl. ¶ 42 ("DefendantCheshire Police Department and Mr. Deegan have contestedplaintiff's Workers' CompensationClaim because plaintiff is a female and because she filed acomplaint of sexual harassment.") (emphasis added); Am. Compl. ¶59 ("Mr. Deegan's demand that plaintiff work alone with him wasin retaliation for plaintiff filing a complaint with the CHRO.")(emphasis added); Am. Compl. ¶ 60 ("the written reprimand thatplaintiff received from Mr. Deegan was in retaliation forplaintiff filing a complaint with the CHRO.") (emphasis added);Am. Compl. ¶ 61 ("the written reprimand that plaintiff receivedfrom Mr. Deegan was in retaliation for plaintiff filing acomplaint with the EEOC.") (emphasis added); Am. Compl. ¶ 67("Cheshire Police Department's offensive and indignant behaviortowards plaintiff was in retaliation for plaintiff filing acomplaint with the CHRO.") (emphasis added); Am.Compl. ¶ 68("Cheshire Police Department's offensive and indignant behaviortowards plaintiff was in retaliation for plaintiff filing acomplaint with the EEOC") (emphasis added).

A continuing violation, however, "may not be based on thecontinuing effects of an earlier discrimination or on a completedact of discrimination." Martinez, 1998 WL 342043 at *2; seealso United Air Lines, 431 U.S. at 558, 97 S.Ct. 1885;Lightfoot, 110 F.3d at 907-08; Blesedell, 708 F. Supp. at1414; Malarkey, 559 F. Supp. at 120. Moreover, a continuingviolation requires a greater repetition and duration of theviolations than has been alleged here. Martinez, 1998 WL 342043at *2, citing Riedinger v. D'Amicantino, 974 F. Supp. 322, 326(S.D.N.Y. 1997) (finding that a "persistent pattern of harassingbehavior" by employer sufficient); Petrosky v. New York StateDep't of Motor Vehicles, 971 F. Supp. 75, 78 (N.D.N.Y. 1997)("repeated and continuous" occurrences of sexual harassmentsufficient to establish a continuing violation). Absent specificallegations of additional instances of sexual harassment — atleast one of which occurred within the limitations period, the1997 incidents alleged by plaintiff do not constitute a series ofdiscriminatory acts.

As noted above, a continuing violation may also be establishedwhere the acts were part of a broader discriminatory system thatthe defendant maintained prior to and during the limitationsperiod. Martinez, 1998 WL 342043 at *3, citing Blesedell, 708F. Supp. at 1415; Wingfield, 678 F. Supp. at 979. This exception"applies to cases involving specific discriminatory policies ormechanisms such as discriminatory lists . . . or employment tests. . . [and] multiple incidents of discrimination, even similarones, that are not the result of a discriminatory policy ormechanism, do not amount to a continuing violation." Lambert v.Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993); see also Van Zantv. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996)(alleged violations were not connected to a policy or practice ofthe employer and did not qualify for a continuing violationexception); Carrasco, 858 F. Supp. at 31-32 (general allegationsin complaint about the existence of a discriminatory patterninsufficient as opposed to specific policies or mechanisms). Thiscan also be constructively found "where specific and relatedinstances of discrimination are permitted by the employer tocontinue unremedied for so long as to amount to a discriminatorypolicy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2dCir. 1994).

Here, Miner makes no allegations that the sexual harassment wasa policy or practice of the Town. Accordingly, she cannot rely onthat theory in support of her continuing violation claim. Rather,Miner relies on the theory that a continuing violation may beconstructively found where specific and related instances ofdiscrimination are permitted by the employer to continueunremedied for so long as to amount to a discriminatory policy orpractice. This theory, however, is not supported by theallegations set forth in her amended complaint.

As noted above, other than those acts described in August andSeptember 1997, there are no specific allegations of sexualharassment set forth in the amended complaint. Moreover, Minerexpressly alleges that "[a]s a result of plaintiff's complaintsof sexual harassment, [the] Cheshire Police Department . . .conducted an investigation," Am.Compl. ¶ 30, and, as a result ofthat investigation, "certain restrictions were placed upon Mr.Deegan," Am. Compl. ¶ 31, including Deegan's being placed on paidleave and Deegan's being instructed not to work the same shiftsas Miner. Thus, it can hardly be said that the Town allowedrelated incidents of discrimination to go unremedied for so longas to amount to a discriminatory policy or practice.

Although Miner alleges that upon Deegan's return from his paidleave, the harassment continued and the Town did nothing furtherto stop it, the amended complaint is totally devoid of a specificallegation of sexual harassment occurring within the limitationsperiod. Moreover, "a conclusory allegation of a continuingviolation will not suffice." Bampoe v. Coach Stores, Inc.,93 F. Supp.2d 360, 369 (S.D.N.Y. 2000); see also Ahmed v. SamsonManagement Corp., No. 95Civ. 9530(MBM), 1996 WL 183011 at *5(S.D.N.Y. 1996); Carrasco, 858 F. Supp. at 31-32; Alveari v.Am. Int'l Group, Inc., 590 F. Supp. 228, 231 (S.D.N.Y. 1984).Viewing Miner's allegations most favorably to her, the lastspecific instance of sexual harassment that is identified inthe amended complaint took place no later than September 1997. Asnoted above, the allegations subsequently set forth in theamended complaint all relate to, and are pled in terms of,retaliation. See, e.g., Am.Compl. ¶ 34 ("In retaliation forfiling a complaint of sexual harassment, Mr. Deegan began tospread false rumors about the plaintiff throughout the policeforce and throughout the Cheshire community.") (emphasis added);Am.Compl. ¶ 42 ("Defendant Cheshire Police Department and Mr.Deegan have contested plaintiff's Workers' Compensation Claimbecause plaintiff is a female and because she filed a complaintof sexual harassment.") (emphasis added); Am.Compl. ¶ 59 ("Mr.Deegan's demand that plaintiff work alone with him was inretaliation for plaintiff filing a complaint with the CHRO.")(emphasis added); Am.Compl. ¶ 60 ("the written reprimand thatplaintiff received from Mr. Deegan was in retaliation forplaintiff filing a complaint with the CHRO.") (emphasis added);Am.Compl. ¶ 61 ("the written reprimand that plaintiff receivedfrom Mr. Deegan was in retaliation for plaintiff filing acomplaint with the EEOC.") (emphasis added).

That Miner has alleged several specific acts of retaliationwithin the limitations period is unavailing with respect to herclaims of sexual harassment. A plaintiff cannot resurrectclaims of discrimination that are outside the limitations periodthrough subsequent acts of retaliation within the limitationsperiod. See, e.g., Quinn v. Green Tree Credit Corp.,159 F.3d 759, 759 (2d Cir. 1998) (affirming dismissal of harassment claimas untimely and vacating dismissal of retaliation claim; "[i]tsometimes happens — more frequently than might be imagined — thatan employee whose primary claim of discrimination cannot survivepre-trial dispositive motions is able to take to trial thesecondary claim that he or she was fired or adversely affected inretaliation for asserting the primary claim"). Although Miner'sclaims of sexual harassment and retaliation are intertwined, theyare separate and independent causes of action. Indeed, where, ashere, Miner has alleged retaliatory acts within the limitationsperiod, Miner could proceed with a retaliation claim even if sheis unable to allege or establish claims of sexual harassmentwithin the limitations period. See, e.g., Quinn, 159 F.3d at759; see also Cooper v. Wyeth Ayerst Lederle, 106 F. Supp.2d 479,501 (S.D.N.Y. 2000) (plaintiff cannot "bootstrap her claimfor failure to file a sexual harassment grievance onto the secondaspect of her DFRclaim — failure to pursue the grievance in a non-discriminatorymanner — in order to avoid the statute of limitations. TheUnion's alleged failure to file a sexual harassment/retaliationgrievance is a wholly separate act from any discriminatoryfailure to prosecute the grievance that was filed. Those twoclaims are theoretically, factually and logically distinct. Theunderlying incidents therefore do not constitute a continuingviolation within the meaning of Cornwell.").

In sum, Miner fails to state claims for sexual harassmentbecause those claims are time-barred on their face, and she haspled no facts that would trigger application of the continuingviolation doctrine or any other equitable tolling principles.Simply put, the plaintiff has not specifically alleged any claimsof sexual harassment within the limitations period. Miner'sattempt to invoke the continuing violation doctrine fails becausethe only specific acts of sexual harassment that she hasidentified in her amended complaint — Deegan's conduct in Augustand September 1997 — occurred well before the pertinentlimitation period. Under the circumstances presented here, thecourt concludes that Miner has not sufficiently pled a continuingviolation for her claims of sexual harassment. Accordingly, CountOne must be dismissed. Similarly, Count Three — insofar as itasserts a violation of CFEPA for sexual harassment — must also bedismissed. These counts will be dismissed, however, withoutprejudice to the filing of an amended complaint that alleges,with the requisite clarity and specificity, a continuing courseof sexual harassment. See, e.g., Ahmed, 1996 WL 183011 at *5;Shelford, 889 F. Supp. at 89; Urashka, 841 F. Supp. at473.2

Counts Four, Five & Six — Municipal Liability

In counts four, five and six of her amended complaint, Mineralleges claims against both the Town and Deegan for intentionalinfliction of emotional distress; negligent infliction ofemotional distress and intentional battery and assault. The Townhas moved to dismiss these counts as against the Town on thegrounds of common law and statutory immunity. The Town has alsomoved to dismiss the claim for intentional infliction ofemotional distress for failure to allege conduct that issufficiently extreme and outrageous. In addition, the Town hasmoved to dismiss the claim for negligent infliction of emotionaldistress for failure to allege unreasonable conduct during thetermination process and for failure to allege sufficient factsthat the Town's conduct was so egregious that it should haverealized that it was creating a risk of causing emotionaldistress.

Intentional Infliction of Emotional Distress

In Count Four, Miner asserts a claim against both the Town andDeegan for intentional infliction of emotional distress. Withrespect to her allegations against the Town, Miner alleges that:

The Cheshire Police Department's conduct, as alleged, including but not limited to refusing to take action to protect plaintiff and other women from sexual harassment; refusing to take action to protect plaintiff from Mr. Deegan's aggressive, offensive, and hostile conduct; reprimanding plaintiff for asserting her rights to be free from sexual harassment; forcing plaintiff to resign her position a second time in retaliation for said exercise of her rights, would be considered to be extreme and outrageous by any reasonable member of the community and would be likely to cause offense and injury to any reasonable woman.

Am.Compl. at 13, ¶ 81.3 Miner also alleges that "[t]heCheshire Police Department is responsible for the conduct of Mr.Deegan to the extent that it knew of the risk that he wouldharass plaintiff but did not make reasonable efforts to preventit." Am. Compl. at 13, ¶ 82. Miner alleges that: (1) the"[d]efendants intended to inflict emotional distress uponplaintiff and/or knew or should have known that emotionaldistress was a substantially likely result of its conduct,"Am.Compl. at 13, ¶ 90; (2) the "[d]efendants' conduct, asalleged, has caused and continues to cause plaintiff toexperience severe emotional distress," Am. Compl. at 13, ¶ 91;and (3) the "[d]efendants' conduct, as alleged, has caused herlost past and future earnings, loss of employment benefits, andexpenses and costs to institute this action." Am.Compl. at 13, ¶92.

To the extent that Miner alleges that the Town is liable forany intentional infliction of emotional distress by Deegan, seeAm.Compl. at 13, ¶ 82, such a claim is precluded byConn.Gen.Stat. § 52-557n, which provides, that "a politicalsubdivision of the state shall not be liable for damages toperson or property caused by . . . [a]cts or omissions of anyemployee, officer or agent which constitute criminal conduct,fraud, actual malice or willful misconduct . . ."Conn.Gen.Stat. § 52-557n(a)(2)(A) (emphasis added). UnderConnecticut law, the term "willfulness" is synonymous with"intentional." Bhinder v. Sun Co., 246 Conn. 223, 242 n. 14,717 A.2d 202 (1998) ("While [courts] have attempted to drawdefinitional [distinctions] between the terms willful, wanton orreckless, in practice the three terms have been treated asmeaning the same thing."), quoting Dubay v. Irish,207 Conn. 518, 533, 542 A.2d 711 (1988); see also Elliott v. City ofWaterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998) (legalconcepts of wanton, reckless, willful, intentional and maliciousconduct indistinguishable); Bauer v. Waste Management ofConnecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996) ("Awillful act is one done intentionally or with reckless disregardof the consequences of one's conduct."). Thus, the Town may notbe liable under section 52-557n(a)(2)(A) for Deegan's allegedintentional infliction of emotional distress.

Similarly, Miner's claim for intentional infliction ofemotional distress directly against the Town is insufficientbecause the Town's conduct was not extreme or outrageous as amatter of law.

In order to assert a claim for intentional infliction ofemotional distress, the plaintiff must establish four elements:"(1) that the actor intended to inflict emotional distress; orthat he knew or should have known that the emotional distress wasa likely result of his conduct; (2) that the conduct was extremeand outrageous; (3) that the defendant's conduct was the cause ofthe plaintiff's distress; and (4) that the distress suffered bythe plaintiff was severe." Petyan v. Ellis, 200 Conn. 243, 253,510 A.2d 1337 (1986); see also Cavuoto v. Oxford Health Plans,Inc., No. 3:99-CV-00446 (EBB), 2000 WL 888263 at *8 (D.Conn.June 22, 2000).

Whether the Town's conduct is sufficient to satisfy the elementof extreme and outrageous conduct is a question, in the firstinstance, for the court. Johnson v. Chesebrough-Pond's USA Co.,918 F. Supp. 543, 552 (D.Conn.), aff'd, 104 F.3d 355 (2d Cir.1996). Liability for intentional infliction of emotional distressrequires conduct that is so extreme and outrageous that it goesbeyond all possible bounds of decency, is regarded as atrocious,is utterly intolerable in a civilized society, and is of a naturethat is especially calculated to cause, and does cause, mentaldistress of a very serious kind. See Taylor v. Maxxim Medical,Inc., 2000 WL 630918 at *3(D.Conn. 2000); Rapkin v. Rocque, 97 F. Supp.2d 244 (D.Conn.2000), citing Petyan, 200 Conn. at 254 n. 5, 510 A.2d 1337 andDeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807(1991); Johnson, 918 F. Supp. at 552 (general rule "is thatthere is liability for conduct exceeding all bounds usuallytolerated by a decent society, of a nature which is especiallycalculated to cause, and does cause, mental distress of a veryserious kind"), quoting Mellaly v. Eastman Kodak Co.,42 Conn. Sup. 17, 19-20, 597 A.2d 846 (Conn. Sup.er.Ct. 1991); see alsoCavuoto, 2000 WL 888263 at *8; 1 Restatement (Second) at comment(d) ("[C]onduct must be so outrageous and extreme . . . as to gobeyond all possible grounds of decency, and to be regarded asatrocious, and utterly intolerable in a civilized society.").Thus, "[i]t is the intent to cause injury that is the gravamen ofthe tort." DeLaurentis, 220 Conn. at 266-67, 597 A.2d 807,citing Hustler Magazine v. Falwell, 485 U.S. 46, 53, 108 S.Ct.876, 99 L.Ed.2d 41 (1988).

Applying these stringent standards to the present case andviewing the allegations in the light most favorable to theplaintiff, the court holds that the Town's conduct as alleged inthe amended complaint was not "so outrageous and extreme . . .[as] to be regarded as atrocious and utterly intolerable in acivilized society."

In the employment context, it is the employer's conduct, notthe motive behind the conduct, that must be extreme oroutrageous. See, e.g., Huff v. West Haven Board of Education,10 F. Supp.2d 117, 123 (D.Conn. 1998). An employer's adverse yetroutine employment action, even if improperly motivated, does notconstitute extreme and outrageous behavior when the employer doesnot conduct that action in an egregious and oppressive manner.See, e.g., Hill v. Pinkerton Security & Investigation Services,Inc., 977 F. Supp. 148, 160 (D.Conn. 1997) (included paying anAfrican-American female less money than her counterparts anddisciplining, reprimanding, and transferring plaintiff to twoother locations in response to her wage investigation); White v.Martin, 23 F. Supp.2d 203, 208 (D.Conn. 1998), aff'd,198 F.3d 235 (2d Cir. 1999) (employer's alleged discrimination, denial ofa promotion, discipline, and harassment based on plaintiff'sgender not extreme or outrageous).

In addition to routine employment actions, Connecticut courtshold that insults, verbal taunts, threats, indignities,annoyances, petty oppressions or conduct that displays badmanners or results in hurt feelings do not support a claim forintentional infliction of emotional distress. Taylor, 2000 WL630918 at *3 (citing Kintner v. Nidec-Torin Corp., 662 F. Supp. 112,114 (D.Conn. 1987); Reed, 652 F. Supp. at 137); Ferraro v.Stop & Shop Supremarket Co., 2000 WL 768525 at *4 (Conn. Sup.er.2000) (internal citations omitted).

Miner's claims against the Town for intentional infliction ofemotional distress are that it: (1) "refus[ed] to take action toprotect plaintiff and other women from sexual harassment;" (2)"refus[ed] to take action to protect plaintiff from Mr. Deegan'saggressive, offensive, and hostile conduct;" and (3)"reprimand[ed] plaintiff for asserting her rights to be free fromsexual harassment, forcing plaintiff to resign her position asecond time in retaliation for said exercise of her rights. . .." Am.Compl. at 13, ¶ 81. As a matter of law, this is notsufficiently extreme or outrageous to support a claim ofintentional infliction of emotional distress. In the absence ofallegations of facts indicating that the Town conducted suchactivities in a humiliating, extreme, or outrageous manner, thecomplaint does not state a claim for intentional infliction ofemotional distress. Accordingly, Count Four as alleged againstthe Town must be dismissed.

Negligent Infliction of Emotional Distress

In Count Five, Miner alleges a claim against both the Town andDeegan fornegligent infliction of emotional distress. With respect to theallegations against the Town, Miner alleges that "[t]he CheshirePolice Department is responsible for its own conduct, and theconduct of Mr. Deegan, to the extent that it knew of the riskthat he would continue to harass and retaliate against theplaintiff, but did not make reasonable efforts to prevent it."Am. Compl. at 14, ¶ 80. Miner claims that "[d]efendants knew orshould have known that its conduct, as described above, wassubstantially likely to cause plaintiff emotional distress, whichwas further likely to result in physiological injury and lostpast and future earnings and costs for instituting this action."Am.Compl. at 14, ¶ 81. Miner claims that she has sustained suchdamages. Am.Compl. at 14, ¶ 82. Miner further alleges that the"Cheshire Police Department is responsible for the conduct of itsemployees including Mr. Deegan in respondeat superior." Am.Compl.at 14, ¶ 83.

Plaintiff's theory of respondeat superior liability must bedismissed because "[a] municipality enjoys governmental immunityfor common-law negligence unless a statute has limited orabrogated that immunity." Hughes v. City of Hartford,96 F. Supp.2d 114, 120 (D.Conn. 2000), citing Williams v. City ofNew Haven, 243 Conn. 763, 766, 707 A.2d 1251 (1998).

Similarly, Conn.Gen.Stat. § 52-557n does not permit a claimagainst the Town for its own negligence — or that of itsemployees — because that statute only authorizes claims innegligence where the municipality has breached a ministerial, butnot a discretionary, duty.4 Tice v. Southington Board ofEducation, 94 F. Supp.2d 242, 245 (D.Conn. 2000). UnderConnecticut law, a municipality is immune from liability for the"negligent acts or omissions which require the exercise ofjudgment or discretion. . . ." Conn.Gen.Stat. § 52-557n(a)(2)(B).A municipality is "not immune, however, from liability forministerial acts performed in a prescribed manner without theexercise of judgment or discretion as to the propriety of theaction. . . . Thus, liability may attach for a negligentlyperformed ministerial act, but not for a negligently performed .. . discretionary act." Romano v. Derby, 42 Conn. App. 624,629, 681 A.2d 387 (1996) (citations and internal quotation marksomitted). Accordingly, the Town's liability here hinges uponwhether the alleged conduct was discretionary or ministerial.

Ordinarily, "whether the act complained of . . . isdiscretionary or ministerial is a factual question which dependsupon the nature of the act complained of." Id. However,"extensive and near-unanimous precedent in Connecticut clearlydemonstrates that the acts or omissions alleged in theplaintiff's complaint [against the Town] — the failure to . . .supervise, control and discipline — are discretionary acts as amatter of law." Hughes, 96 F. Supp.2d at 119 (collecting cases).Accordingly, the acts alleged in the Miner's amended complaint onthe part of the Town of Cheshire are discretionary in nature, andare therefore protected by governmental immunity. Thus, the countfive must be dismissed as against the Town. See Hughes, 96F. Supp.2d at 120.

In addition, Miner's claim for negligent infliction ofemotional distress against the Town is also insufficient as amatter oflaw. A claim of negligent infliction of emotional distress as anindependent tort is relatively new to Connecticut law.Historically, emotional distress was not compensated at commonlaw in the absence of physical injury or a risk of harm fromphysical impact. Malik v. Carrier Corp., 986 F. Supp. 86, 89(D.Conn. 1997), aff'd in part, rev'd in part, 202 F.3d 97 (2dCir. 2000). It was not until 1978 that the Connecticut SupremeCourt recognized the tort of negligent infliction of emotionaldistress. Montinieri v. Southern New England Telephone Co.,175 Conn. 337, 398 A.2d 1180 (1978). In Montinieri, andconsistently ever since, the Connecticut Supreme Court has heldthat, in order to assert a cause of action for negligentinfliction of emotional distress, a plaintiff has the burden ofpleading that the "defendant should have realized that itsconduct involved an unreasonable risk of causing emotionaldistress and that that distress, if it was caused, might resultin illness or bodily harm." Id. at 345, 398 A.2d 1180; seealso Parsons v. United Technologies Corp., 243 Conn. 66, 88,700 A.2d 655 (1997); Morris v. Hartford Courant Co., 200 Conn. 676,683-84, 513 A.2d 66 (1986). In holding that recovery fornegligent infliction of emotional distress does not requireallegations of physical injury or the risk of harm from physicalimpact, the Court recognized that this tort must nevertheless "belimited so as not to `open up a wide vista of litigation in thefield of bad manners, where relatively minor annoyances hadbetter be dealt with by instruments of social control other thanthe law.'" Montinieri, 175 Conn. at 345, 398 A.2d 1180,quoting Calvert Magruder, Mental and Emotional Disturbance inthe Law of Torts, 49 HARV.L.REV. 1033, 1035 (1939).

Because emotional distress in the workplace is not uncommon,courts have "viewed the application of the [negligent inflictionof emotional distress] doctrine to employment relationships withsome alarm." Hernandez v. City of Hartford, 30 F. Supp.2d 268,273 (D.Conn. 1998), quoting Malik, 986 F. Supp. at 91. Moreover,the Connecticut Supreme court has stated that, in the employmentcontext, "courts should not lightly intervene to impair theexercise of management discretion or to foment unwarrantedlitigation." Sheets v. Teddy's Frosted Foods, Inc.,179 Conn. 471, 477, 427 A.2d 385 (1980). Therefore, courts have beenconcerned about the expansion of this claim in the employmentcontext and have kept a "tight rein" on these claims.Hernandez, 30 F. Supp.2d at 273.

To that end, Connecticut courts have held that "even anemployer's wrongful employment actions are not enough to sustaina claim for negligent infliction of emotional distress." Id.,citing Hill v. Pinkerton Security & Investigation Services,Inc., 977 F. Supp. 148, 159 (D.Conn. 1997). To state a claim fornegligent infliction of emotional distress, the complaint mustinclude allegations of unreasonable conduct in the manner inwhich the employer carried out an employment action. See id.;Parsons, 243 Conn. at 89, 700 A.2d 655; Lopez-Salerno v.Hartford Fire Insurance Co., 1997 WL 766890 at *6 (D.Conn. Dec.8, 1997); Hultgren v. First Fidelity Bank, 1997 WL 766879 at *8(D.Conn. Dec. 2, 1997).

Moreover, to be unreasonable, the employer's conduct must behumiliating, extreme, or outrageous. See Johnson v.Chesebrough-Ponds, Inc., 1996 WL 734043 at *3 (2d Cir. 1996);Parsons, 243 Conn. at 88, 700 A.2d 655 (affirming the trialcourt's striking of an negligent infliction claim, where thetrial court defined unreasonable conduct as humiliating andrejected the suggestion from another court that conduct that isembarrassing or inconsiderate is actionable); Brown v.Nationscredit Commercial Corp., 2000 WL 306947 at *4 (D.Conn.Feb. 8, 2000) ("Connecticut courts have uniformly held extremeand outrageous behavior" is required); Roberts v. AndersenLaboratories, Inc., 1997 WL 663303 at *9 (Conn. Sup.er. Oct.14,1997)("An essential element of the tort is conduct that is extreme andoutrageous.").

Therefore, ordinary employment actions, even if wrongful, donot support a claim for negligent infliction of emotionaldistress absent an employer's egregious conduct in carrying outthose actions. Courts have consistently held that termination fordiscriminatory reasons, without more, is not enough to sustain aclaim for negligent infliction of emotional distress. See, e.g.,Newtown v. Shell Oil Co., 52 F. Supp.2d 366, 367, 375 (D.Conn.1999); Thomas v. St. Francis Hospital and Medical Center,990 F. Supp. 81, 92 (D.Conn. 1998). Courts have also found that thefollowing employment actions, short of termination are nothumiliating, extreme or outrageous as a matter of law: thewrongful refusal to hire based on racial discrimination, Huff v.West Haven Board of Education, 10 F. Supp.2d 117, 124 (D.Conn.1998) (motion to dismiss granted); the failure to place anemployee on an eligibility list for promotions, thereby denyingher a promotion, and the failure to notify the plaintiff of herrights in the appeal process, Stosuy v. City of Stamford, 1999WL 711515 at *4 (Conn. Sup.er. Aug. 30, 1999) (motion to strikegranted); the denial of a pregnant employee's request to work athome upon medical advice due to premature labor, Hernandez, 30F. Supp.2d at 273-74 (judgment as a matter of law granted); andthe promise of a promotion that never occurred, Perillo v.Perkin-Elmer Corp., 1998 WL 846737 at *3 (D.Conn. Dec. 3, 1998)(summary judgment granted).

In Hill v. Pinkerton Security & Investigation Services, Inc.,977 F. Supp. 148, 159 (D.Conn. 1997), the court held that anemployer's alleged unsatisfactory response to anAfrican-American, female security guard employee's complaint of awage differential was not unreasonable as a matter of law. Theplaintiff alleged that this response included revoking theplaintiff's fifteen-minute grace period for signing in,questioning the length of time it took her to complete herduties, restricting her access to her supervisor's office,changing her work post, temporarily transferring her to anotherwork site and then permanently transferring her to yet anotherdifferent location where the plaintiff continued to work at thesame rate of pay. Id. at 151-53. Even though the employee wasnot satisfied with the way in which her employer investigated hercompensation complaint, the court held that "such routineemployment occurrences as the plaintiff experienced were not sounreasonable that the defendant knew or should have known thatits conduct involved an unreasonable risk of causing emotionaldistress which might result in illness or bodily harm." Id. at159.

Based on the allegations of the complaint, construed in thelight most favorable to Miner, the Town's conduct was not sounreasonable that the Town should have known that it involved anunreasonable risk of causing emotional distress that might resultin illness or bodily harm to Miner. First, Miner bases her claimof negligent infliction of emotional distress against the Town onthe same facts underlying her claims of discriminatory conduct.See Am.Compl. ¶¶ 1-79. Miner claims against the Town are that,after (1) conducting an investigation of Miner's complaints ofsexual harassment, (2) placing Deegan on paid leave, and (3)placing certain restrictions on Deegan upon his return, the Towndid nothing further to stop the alleged harassment. Miner furtheralleges that the Town questioned the severity and origin of herWorkers' Compensation claim and thereafter contested that claim,treating her differently from male individuals. Miner alsoalleges that, following the March 29, 1999 incident, the Townaccused her of insubordination and neglect of duty; notified herthat there were no work restrictions placed on Deegan; andthreatened her job based solely on Deegan's March 29th warning.Miner alleges that the Town's conduct was in retaliation for herfiling a complaint withthe CHRO and EEOC. Miner also alleges that the Town was wellaware of Deegan's harassment, but failed to take adequateremedial measures or provide adequate training; and failed toprovide an appropriate mechanism for the reporting of incidentsof sexual harassment in the workplace.

Simply put, this is not enough to support a claim of negligentinfliction of emotional distress. In the absence of allegationsof facts indicating that the Town conducted routine employmentactivities in a humiliating, extreme, or outrageous manner, thecomplaint does not state a claim for negligent infliction ofemotional distress. Miner's claims that the Town did not takeappropriate steps to address the alleged harassment; contestedher Workers' Compensation claim; and did not appropriatelyrespond to her complaints are not extreme or outrageous as amatter of law. See Hill, 977 F. Supp. at 159. Nor are Miner'sadditional allegations, that the Town threatened her job basedsolely on Deegan's warning, legally sufficient. Miner has allegedno supporting facts that the Town acted in a humiliating,extreme, or outrageous manner. In short, Miner's allegations donot rise to the required level of unreasonableness to state aclaim for negligent infliction of emotional distress. SeeThomas, 990 F. Supp. at 92; Perillo, 1998 WL 846737 at *3.

For the foregoing reasons, Miner's claim of negligentinfliction against the Town fails. The motion to dismiss isgranted in favor of the Town on Count Five.

Assault and Battery

In Count Six, Miner alleges that Deegan's conduct constitutedthe intentional torts of battery and assault. Am.Compl. at 14-15,¶¶ 80-81. Miner alleges that the "Cheshire Police Department isresponsible for Deegan's conduct to the extent that it knew ofthe risk that he would harass plaintiff but did not makereasonable efforts to prevent it." Am.Compl. at 15, ¶ 83. Mineralleges that the "Cheshire Police Department is responsible forthe intentional tortious conduct of Mr. Deegan in respondeatsuperior." Am.Compl. at 15, ¶ 84.

As noted above, section 52-557n(a)(2)(A) provides in relevantpart that "a political subdivision of the state shall not beliable for damages to person or property caused by . . . [a]ctsor omissions of any employee, officer or agent which constitutecriminal conduct, fraud, actual malice or willful misconduct . .." Conn.Gen.Stat. § 52-557n(a)(2)(A).

Count Six expressly alleges a cause of action predicated uponalleged intentional acts by Deegan. The motion to dismiss theclaims of assault and battery as against the Town is granted onthe ground that section 52-557n(a)(2)(A) specifically exempts theTown from liability for such willful, intentional misconduct ofits employees as is alleged in Count Six.

Counts Three, Seven and Eight — Supplemental Jurisdiction

The Town urges the court to decline supplemental jurisdictionover any remaining state law claims pursuant to 28 U.S.C. § 1367.Because the court has subject matter jurisdiction over theplaintiff's Title VII claims, and because the surviving state lawclaims arise from the same nucleus of operative facts, the court,in its discretion, will retain jurisdiction over the remainingstate law claims in the interests of judicial economy.5

Deegan's Motion to Dismiss

Deegan has moved to dismiss Counts One, Two and Three of theplaintiff's initial complaint. These counts are, respectively:sexual harassment in violation of Title VII, retaliation inviolation of Title VII and sexual harassment and retaliation inviolation of CFEPA, respectively. Because they set forth the samecauses of action, the court treats Deegan's Motion to Dismiss asdirected at Counts One, Two and Three of the plaintiff's amendedcomplaint.

Counts One and Two — Individual Liability Under Title VII

Deegan moves to dismiss Counts One and Two, alleging sexualharassment and retaliation under Title VII, on the grounds thatTitle VII does not provide a right of action against Deeganpersonally, citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313(2d Cir. 1995). Although Miner concedes that Tomka "is the mostcurrent Second Circuit decision on individual liability underTitle VII and is therefore precedent for this Court to follow,"Pl.'s Memorandum in Opposition to Defendant Deegan's Motion toDismiss at 9, she argues that the Circuit Courts of Appeals aredivided on the issue and that the Supreme Court has not yetresolved the question. Id. Miner further argues that Tomka isdistinguishable because "the individual defendants in Tomkawere characterized as `co-employees' and none was the directsupervisor of plaintiff with respect to conditions of heremployment." Id. Here, she claims, Deegan had supervisorycontrol over her.

The court is not persuaded that individual liability underTitle VII may extend to Deegan. In Tomka v. Seiler Corp.,66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds,Burlington Ind. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141L.Ed.2d 633 (1998), the Second Circuit held that "individualdefendants with supervisory control over a plaintiff may not beheld personally liable under Title VII." The Court noted thatTitle VII specifically limited liability to employer-entitieswith 15 or more employees. Id. at 1314, citing 42 U.S.C. § 2000e(b).In light of Congress' concern to avoid subjecting smallemployers to the burdens of Title VII, the Court reasoned that itwas inconceivable that Congress would simultaneously allow civilliability to run against individual employees. Id.; see alsoMcBride v. Routh, 51 F. Supp.2d 153, 156 (D.Conn. 1999), citingNorthup v. Connecticut Commission on Human Rights &Opportunities, No. 3:97CV211(DJS), 1998 WL 118145 at *3 (D.Conn.Feb. 2, 1998); Friel v. St. Francis Hospital, No.3:97CV803(DJS), 1997 WL 694729 at *3 (D.Conn. Oct. 31, 1997);Schaffer v. Ames Department Stores, Inc., 889 F. Supp. 41, 44(D.Conn. 1995). The Tomka Court dismissed the plaintiff's TitleVII claims against her three supervisors, whom she had sued intheir corporate as well as their individual capacities.

What the Second Circuit has not yet addressed is the specificissue whether a plaintiff may assert a Title VII claim against anindividual supervisor in his or her official capacity.6Courts in this District, however, have rejected such claims.See, e.g., McBride, 51 F. Supp.2d at 156-57; Schaffer, 889F. Supp. at 43-46. "Other district courts within this Circuit havereached conflicting results, although the recent trend in TitleVII cases has been to disallow official capacity claims againstnon-employer individuals." McBride, 51 F. Supp.2d at 156-57(collecting cases). The court is persuaded by the casesdisallowing such official capacity claims. Tomka and thelanguage of Title VII compel a holding that onlyemployer-entities have liability under Title VII. Thus, Miner maynot assert a Title VII claim against Deegan in her individual orofficial capacity. Miner's claim for Title VII discrimination isagainst her employer, not against an individual supervisor.Accordingly, Counts One and Two alleging sexual harassment andretaliation against Deegan must be dismissed.

Count Three — Individual Liability Under CFEPA

Deegan similarly seeks to dismiss Count Three against himpersonally on the ground that there is no individual supervisoryliability under CFEPA.

The Connecticut appellate courts have yet to rule on thequestion whether supervisory employees can be held individuallyliable under CFEPA. There is also disagreement among the lowerConnecticut courts that have considered the issue. See Wasik v.Stevens Lincoln-Mercury, Inc., No. Civ. 3:98cv1083(DJS), 2000 WL306048 (D.Conn. Mar. 20, 2000), comparing Le v. ConnecticutDept. of Transportation, No. CV980491121S, 1999 WL 619631, at *3(Conn. Sup.er.Ct. Aug. 4, 1999) (holding that supervisory employeeis not an employer under the terms of CFEPA, and because theemployer is liable for the employee's actions, a plaintiff maynot maintain an action against the employee individually underConn.Gen.Stat. § 46a-60); Nwachukwu v. State of ConnecticutDepartment of Labor, No. CV-970573595S, 1997 WL 803857, at *2(Conn. Sup.er.Ct. Dec. 17, 1997) (finding that the plain languageof section 46a-60(a)(1) indicates that employers are responsiblefor the actions of their employees, and that there is no languagein the section making employees liable individually);Martinez-Duffy v. DeJesus, No. 545193, 17 Conn.L.Rptr. 64,65-66 (Conn. Sup.er.Ct. May 1, 1996) (finding supervisor notsubject to individual liability under Conn.Gen.Stat. § 46a-60because supervisors are not employers and are not the intendeddefendants within the meaning of CFEPA); and Walters v.Homestaff Health Care, No. CV 950146961S, 1996 WL 88058 at *4(Conn. Sup.er.Ct. Feb. 8, 1996) (finding supervisory employee notliable under the plain meaning of section 46a-60a(8) because hewas not an employer), with Dombrowski v. Envirotest System, No.CV 980412518, 1999 WL 643394, at *2 (Conn. Sup.er.Ct. Aug. 10,1999) ("The specific language of § 46a-60(a)(4) prohibiting any`person' from discharging, expelling or otherwise discriminatingagainst any person because he has opposed any discriminatoryemployment practice, leads to the conclusion that a cause ofaction against an individual is permitted under this section."),and Lueneburg v. Mystic Dental Group, No. CV 535839, 1996 WL456967, at *4-5 (Conn. Sup.er.Ct. Aug. 1, 1996) (construing theremedial provision of CFEPA to allow supervisory employees to beheld individually liable); see also Kavy v. New Britain Bd. ofEd., No. CV990492921S, 1999 WL 619587, at *5-6 (Conn. Sup.er.Ct.Aug.3, 1999) (finding supervisory employees are not employerswithin the meaning of CFEPA, and therefore not liable undersections 46a-60(a)(8) and 46a-81c, but they are persons withinthe meaning of the Act, and may therefore be liable undersections 46a-60(a)(4), and (5)); Sefsik v. Fiandra, No. 326723,1998 WL 481880, at *1-2 (Conn. Sup.er.Ct. Aug. 5, 1998) (findingthere is no individual supervisory liability under Conn.Gen.Stat.section 46a-60(a)(1) because individual defendants are notemployers under CFEPA, but they may be liable under section46a-60(a)(4) because this section specifically includes the term"persons" as potentially liable parties).

In Wasik v. Stevens Lincoln-Mercury, Inc., No. Civ.3:98cv1083(DJS), 2000 WL 306048 (D.Conn. Mar. 20, 2000), an agediscrimination case, the court, in the absence of controllingprecedent, determined how the Connecticut Supreme Court woulddecide the issue. Id. at *6, citing Continental Cas. Co. v.Pullman, Comley, Bradley & Reeves, 929 F.2d 103, 105 (2d Cir.1991). The court noted that, "[g]enerally, Connecticut courtslook to case law involving federal legislation to interpret theirstate's anti-discrimination statute." Wasik, 2000 WL 306048 at*6, citing Bridgeport Hosp. v. Commission on Human Rights andOpportunities, 232 Conn. 91, 108, 653 A.2d 782 (1995). The courtalso noted, however, that "the Connecticut Supreme Court has alsostated that `under certain circumstances, federal law definesthe beginning and not the end of our approach to the subject.'"Wasik, 2000 WL 306048 at *6, citing State v. Commission onHuman Rights and Opportunities, 211 Conn. 464, 469-70,559 A.2d 1120 (1989).

The court reasoned that, in contrast to the federal AgeDiscrimination in Employment Act ("ADEA"), the definition of"employer" under CFEPA reaches "the state and all politicalsubdivisions thereof and any person or employer with three ormore persons in his employ." Conn.Gen. Stat. § 46a-51(10). Thecourt noted that "[a]t least one court has found significant thefact that an employer need only employ three employees to fitwithin CFEPA's definition of an employer, and has interpretedthis difference as an indication that the Connecticut legislatureintended to provide for supervisory liability." Wasik, 2000 WL306048 at *6, citing Lueneburg, 1996 WL 456967, at *3 ("Thestatutory definitions and remedies provided for under the CFEPAare significantly different from the ADEA and Title VII and thesedifferences are intended to express a legislative intent to allowsupervisory employees to be held individually liable fordiscrimination."). The court stated, however, that although"CFEPA's definition of an employer is significantly moreinclusive than the ADEA definition, it should not be concludedbased on this factor alone that the Connecticut legislatureintended this difference to signify the inclusion of individualsupervisors for purposes of liability. Instead, this ambiguityshould be clarified by examining the remaining provisions ofCFEPA and, thus, viewing the Statute as a whole." Wasik, 2000WL 306048 at *6.

Reviewing the remaining provisions of CFEPA, the Wasik courtfound that, although Conn.Gen.Stat. § 46a-60(a)(1) makes itunlawful for "an employer, by himself or his agent," to dischargeor discriminate against an individual in compensation or in theterms, conditions, or privileges of employment on the basis ofage, "other CFEPA provisions expressly extend liability fordiscriminatory acts to individual persons, regardless of whetherthey are employers." Wasik, 2000 WL 306048 at *6, citingConn.Gen.Stat. § 46a-60(a)(4) (it shall be a discriminatoryemployment practice under CFEPA "[f]or any person, employer,labor organization or employment agency to discharge, expel orotherwise discriminate against any person because he has opposedany discriminatory employment practice"); Conn.Gen. Stat. §46a-60(a)(5) (it shall be a discriminatory practice "[f]or anyperson, whether an employer or an employee or not, to aid,abet, incite, compel or coerce the doing of any act declared tobe a discriminatory employment practice or to attempt to do so");Conn.Gen.Stat. § 46a-60(a)(6) (it shall be a discriminatorypractice "[f]or any person, employer, employment agency orlabor organization . . . to advertise employment opportunities insuch a manner as to restrict such employment so as todiscriminate against individuals") (emphasis added). The courtfound that "[t]his distinction in the choice of language issignificant. It is a basic rule of statutory construction thatwhen the legislature had an opportunity to include a class ofentities in its prohibition against certain acts, but did not doso, the legislature intended, by omission, not to include suchclass." Id.

Applying this rule to the question before the court, andviewing the statute as a whole, the Wasik court concluded that"the legislature, by failing to extend liability expressly to`persons' in § 46a-60(a)(1), and instead limiting liability inthat section to employers, by themselves or through their agents,did not intend to hold employees, whether supervisory or not,individually liable under § 46a-60(a)(1)." Id. at *7. The courttherefore held that the defendant could not be held individuallyliable under the plaintiff's CFEPA claim pursuant to section46a-60(a)(1).7 Id.; seealso Cox v. Namnoun, No. 3:95CV37 (AVC), slip op. at 12(D.Conn. Sept. 26, 1996) (noting that the Connecticut legislatureextended liability to "any person" in other sections of CFEPA,but only to an "employer" in section 46a-60(a)(1), and concludingthat section 46a-60(a)(1) does not provide for individualsupervisory liability). But see Swanson v. Envirotest Sys.Inc., No. 3:98CV751(AHN), 1998 WL 928415, at *3 (D.Conn. Dec.18, 1998); Armstrong v. Chrysler Fin. Corp., No.3:97CV1557(AHN), 1998 WL 342045 at *4 (D.Conn. May 14, 1998);Murphy v. Burgess and Norwalk Economic Opportunity, Inc., No.3:96CV1987(AHN), 1997 WL 529610 at *3-5 (D.Conn. July 16, 1997)(holding in Murphy, and declining to reconsider in Swanson andArmstrong that, in light of the differences between the statutoryscheme and remedial provisions of CFEPA and Title VII, CFEPA'sdiscrimination provisions were intended to impose individualliability on supervisors who hold positions of power, control,and authority, and who use that power, control, and authority toengage in the conduct giving rise to a discrimination claim);Thompson v. Service Merchandise, Inc., No. 3:96CV1602(GLG),1998 WL 559735, at *4 (D.Conn. Aug. 11, 1998) (sua spontegranting summary judgment with respect to Title VII claimsagainst individual supervisors, but preserving claims againstsupervisors under CFEPA based on holding in Murphy, supra, thatsupervisors may be held individually liable under CFEPA).

After careful analysis, this court finds the reasoning ofWasik to be persuasive and applicable with equal force toMiner's claims of sexual harassment and retaliation under CFEPA.In Count Three, Miner alleges violations of sections 46a-60(1),(4), (5) and (8). Section 46a-60(1) however, makes it unlawfulfor "an employer, by himself or his agent," to discharge ordiscriminate against an individual in compensation or in theterms, conditions, or privileges of employment on the basis ofage. Similarly, section 46a-60(8) makes it unlawful for "anemployer, by himself or his agent, for an employment agency, byitself or its agent, or for any labor organization, by itself orits agent to harass any employee, person seeking employment ormember on the basis of sex." Conn.Gen.Stat. § 46a-60(8). Thelegislature, by failing to extend liability expressly to"persons" in sections 46a-60(a)(1) and (8) and instead limitingliability in that section, did not intend to hold employees,whether supervisory or not, individually liable. Moreover, thefact that the Connecticut legislature extended liability to "anyperson" in other sections of CFEPA, but did not do so in sections46a-60(a)(1) and (8) is significant. Accordingly, section46a-60(a)(1) and (8) do not provide for individual supervisoryliability.

Although there is no individual supervisory liability undersections 46a-60(a)(1) and (8), recovery against a supervisoryemployee may be cognizable under the retaliation provisioncontained in section 46a-60(a)(4) and under the aiding andabetting provision contained in section 46a-60(a)(5). SeeWasik, 2000 WL 306048 at *7; see also Cullen v. Putnam SavingsBank, Inc., No. 3:96cv2315 (AHN), 1997 WL 280502 at *5 (D.Conn.May 17, 1997) (finding supervisor may be individually liable foraiding and abetting discrimination under section 46a-60(a)(5)).Section 46a-60(a)(4) makes it unlawful for "any person,employer, labor organization or employment agency to discharge,expel or otherwise discriminate against any person because he hasopposed any discriminatory employment practice or because he hasfiled a complaint or testified or assisted in any proceeding . .." in connection therewith. Conn.Gen.Stat. § 46a-60(a)(4)(emphasis added); see also Wasik, 2000 WL 306048 at *7 n. 6 (Inaddition to section 46a-60(a)(5), "[r]ecovery against individualpersons may also be authorized underConn.Gen.Stat. §§ 46a-60(a)(4) and (6). However these subsectionsof CFEPA, addressing retaliation and job advertisement, areentirely unrelated to the case at bar."). Similarly, undersection 46a-60(a)(5) it is a violation of CFEPA "[f]or anyperson, whether an employer or an employee or not, to aid,abet, incite, compel or coerce the doing of any act declared tobe a discriminatory employment practice or to attempt to do so."Conn.Gen.Stat. § 46a-60(a)(5) (emphasis added). Accordingly,recovery against a supervisory employee is cognizable under thisaiding and abetting provision of CFEPA. Wasik, 2000 WL 306048at *7. Viewing the allegations of Miner's amended complaint inthe light most favorable to her, the court cannot conclude atpresent that the plaintiff can prove no set of facts in supportof her section 46a-60(a)(4) and (5) claims which would entitleher to relief. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994), cert. denied, 513 U.S. 836, 115 S.Ct. 117, 130 L.Ed.2d63 (1994). Dismissal at this stage, therefore, is inappropriatewith respect to those claims.

Because section 46a-60(a)(1) and (8) do not provide forindividual supervisory liability, Miner has not alleged a viableclaim under CFEPA against Deegan individually, and these claimsin Count Three are dismissed. Deegan's motion to dismiss withrespect to Miner's CFEPA claims under sections 46a-60(a)(4) and(5), however, is denied.8

CONCLUSION

For the foregoing reasons, the Town's Motion to Dismiss (doc.#12) is GRANTED IN PART and DENIED IN PART. Deegan's Motion toDismiss (doc.# 14) is GRANTED IN PART and DENIED IN PART.

The following causes of action are dismissed: (1) Count One,alleging claims under Title VII for sexual harassment against theTown. This claim against the Town is dismissed, however, withoutprejudice to the filing of an amended complaint that alleges,with the requisite clarity and specificity, a continuingviolation for the sexual harassment claims; (2) Count One,alleging claims under Title VII for sexual harassment againstDeegan; (3) Count Two alleging claims under Title VII forunlawful retaliation is dismissed as against Deegan only; (4)Count Three, insofar as it alleges claims against the Town forsexual harassment under CFEPA. This claim against the Town isdismissed, however, without prejudice to the filing of an amendedcomplaint that alleges, with the requisite clarity andspecificity, a continuing violation for the sexual harassmentclaims; (5) Count Three, alleging claims under sections46a-60(a)(1) and (8) of CFEPA are dismissed as against Deegan;(6) Count Four, alleging intentional infliction of emotionaldistress against the Town; (7) Count Five, alleging negligentinfliction of emotional distress against the Town; and (8) CountSix, alleging battery and assault against the Town.

The following claims survive the motion to dismiss: (1) CountTwo, alleging claims under Title VII for unlawful retaliationagainst the Town; (2) Count Three, alleging claims other thansexual harassment against the Town under CFEPA; (3) Count Threealleging claims under sections 46a-60(a)(4) and (5) of CFEPAagainst Deegan; (4) Count Four, alleging intentional inflictionof emotional distress against Deegan; (5) Count Five, allegingnegligent infliction of emotional distress against Deegan; (6)Count Six, alleging battery and assault against Deegan; (7) CountSeven alleging negligent supervision against the Town; (8) CountEight alleging a breach of the implied covenant of good faith andfair dealing against the Town; and (9) Count Nine allegingdefamation against Deegan.

The plaintiff shall file a second amended complaint consistentwith this ruling by October 31, 2000.9

It is so ordered.

1. The pending motions are directed at the initial complaintand the parties never sought leave to treat them as directed atthe amended complaint. The motions could therefore be denied asmoot and without prejudice to refiling in light of theplaintiffs' Amended Complaint. Nevertheless, because the court isinclined to consider the claims of the motions on the meritsrather than decline to hear them on procedural grounds that mayonly serve to delay this matter further, the court considers andinterprets the pending motions as if directed at the AmendedComplaint.

2. "Of course, all allegations in any such amended complaintshall be `well grounded in fact' and made only after `areasonable and competent inquiry.'" Urashka, 841 F. Supp. at 473n. 5, citing Fed.R.Civ.P. 11; Bolden v. Morgan Stanley & Co.,765 F. Supp. 830, 834 (S.D.N.Y. 1991).

3. In her amended complaint, Miner has begun the paragraphnumbering of each count with paragraph 1. Accordingly, in thisdecision, references to the amended complaint recite both thepage and paragraph number.

4. Section 52-557n(a) provides, in pertinent part:

(1) Except as otherwise provided by law a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties. . . .

(2) "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."

Conn.Gen.Stat. § 52-557n(a) (emphasis added).

5. The Town asked "that Count Eight be dismissed because Minerhas failed to use any procedures in her collective bargainingagreement to remedy this situation." Memorandum of Law in Supportof Defendants' [sic] Motion to Dismiss at 2. Other than thisstatement, this issue was not raised by the Town, nor was itbriefed by the parties. Accordingly, the Town's request todismiss Count Eight on this ground is denied without prejudice.

6. Miner has not made any distinction between official andindividual capacity in her amended complaint.

7. The court noted that "a supervisory employee does not meetthe definition of employer because, by definition, he does notemploy three or more employees." Wasik, 2000 WL 306048 at *7,citing Conn.Gen.Stat. § 46a-51(10).

8. The court declines to consider Deegan's additional argumentthat CFEPA is unconstitutional on its face at this juncture.Accordingly, Deegan's Motion to Dismiss on this ground is deniedwithout prejudice to raising this claim in a future dispositivemotion.

9. The plaintiff's complaint shall only be amended toeliminate the claims dismissed by this ruling and to assert, withthe requisite clarity and specificity, a continuing violation forthe sexual harassment claims. Any other substantive request toamend the plaintiff's complaint must be made by formal motionseeking leave to amend.

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