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Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. However, “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to meet this standard, id., and a plaintiffs “[fjactual allegations must be enough to raise a right to relief above the speculative level.... ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Moreover, a court “is not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 129 S.Ct. at 1949-50. C. Summary Judgment Summary judgment is appropriate only if the record shows that “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir.1996) (citations omitted). The party seeking summary judgment has the initial burden of showing the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Once a motion for summary judgment is properly made and supported, the opposing party must come forward and show that a genuine dispute exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party opposing summary judgment may not rest upon mere allegations or denials. Rather, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (quotation omitted). Unsupported speculation is not enough to withstand a motion

L.Ed.2d 202 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir.1996) (citations omitted). The party seeking summary judgment has the initial burden of showing the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Once a motion for summary judgment is properly made and supported, the opposing party must come forward and show that a genuine dispute exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party opposing summary judgment may not rest upon mere allegations or denials. Rather, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (quotation omitted). Unsupported speculation is not enough to withstand a motion for summary judgment. See Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir.1986). Summary judgment is appropriate when, after discovery, a party has failed to make a “showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In reviewing the record on summary judgment, the court “must draw any inferences in the light most favorable to the nonmovant” and “.determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant.” Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th Cir.1991) (citations omitted). D. Pro Se Plaintiff Complaints filed by pro se plaintiffs are construed more liberally than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). “However inartfully pleaded by a pro se plaintiff, allegations are sufficient to call for an opportunity to offer supporting evidence unless

for summary judgment. See Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir.1986). Summary judgment is appropriate when, after discovery, a party has failed to make a “showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In reviewing the record on summary judgment, the court “must draw any inferences in the light most favorable to the nonmovant” and “.determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant.” Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th Cir.1991) (citations omitted). D. Pro Se Plaintiff Complaints filed by pro se plaintiffs are construed more liberally than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). “However inartfully pleaded by a pro se plaintiff, allegations are sufficient to call for an opportunity to offer supporting evidence unless it is beyond doubt that the plaintiff can prove no set of facts entitling him to relief.” Thompson v. Echols, No. 99-6304, 1999 WL 717280 (4th Cir.1999) (citing Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)). While a court is not expected to develop tangential claims from scant assertions in a complaint, if a pro se complaint contains potentially cognizable claims, the plaintiff should be allowed to particularize those claims. Id. (citing Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.1985); Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir.1965)). III. Analysis A. Defendants’Motion to Strike Defendants move to strike Plaintiffs opposition brief to their Motion to Dismiss and for Summary Judgment because the brief was filed without good cause two weeks late on the day after Christmas, resulting in prejudice to Defendants due to holiday leave and from the loss of several days to draft their reply brief. (Def. Mot. to Strike [Dkt. 16] at 2.) Defendants filed their Motion to Dismiss and for Summary Judgment on November 20, 2012. [Dkts.

it is beyond doubt that the plaintiff can prove no set of facts entitling him to relief.” Thompson v. Echols, No. 99-6304, 1999 WL 717280 (4th Cir.1999) (citing Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)). While a court is not expected to develop tangential claims from scant assertions in a complaint, if a pro se complaint contains potentially cognizable claims, the plaintiff should be allowed to particularize those claims. Id. (citing Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.1985); Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir.1965)). III. Analysis A. Defendants’Motion to Strike Defendants move to strike Plaintiffs opposition brief to their Motion to Dismiss and for Summary Judgment because the brief was filed without good cause two weeks late on the day after Christmas, resulting in prejudice to Defendants due to holiday leave and from the loss of several days to draft their reply brief. (Def. Mot. to Strike [Dkt. 16] at 2.) Defendants filed their Motion to Dismiss and for Summary Judgment on November 20, 2012. [Dkts. 8, 13.] Under Local Rule 7(J), and as indicated in Defendants’ proper Roseboro notice [Dkt. 10], Plaintiff had twenty-one days to file a response to the motion. See Local Rule 7(J); Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975). As a result, the deadline to file an opposition was December 11, 2012. Plaintiff, however, did not file his opposition until December 26, 2012 and did not provide any reasons justifying this delay. [Dkt. 14.] Even under the signature date on the opposition, December 20, 2012, Plaintiffs opposition is untimely. (Id. at 31.) Based on these calculations and Plaintiffs failure to provide good cause for his untimely filing, the Court will grant Defendants’ Motion to Strike. B. Defendants’ Motion to Dismiss and for Summary Judgment 1. Constitutional Claims Under First and Fourteenth Amendments a. Claims Against the NIH and the USDE Defendants argue that the Court should dismiss Plaintiffs constitutional claims under the First and Fourteenth Amendments against the NIH and the USDE in Counts I — III because the Court lacks subject matter jurisdiction over these claims as to these

8, 13.] Under Local Rule 7(J), and as indicated in Defendants’ proper Roseboro notice [Dkt. 10], Plaintiff had twenty-one days to file a response to the motion. See Local Rule 7(J); Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975). As a result, the deadline to file an opposition was December 11, 2012. Plaintiff, however, did not file his opposition until December 26, 2012 and did not provide any reasons justifying this delay. [Dkt. 14.] Even under the signature date on the opposition, December 20, 2012, Plaintiffs opposition is untimely. (Id. at 31.) Based on these calculations and Plaintiffs failure to provide good cause for his untimely filing, the Court will grant Defendants’ Motion to Strike. B. Defendants’ Motion to Dismiss and for Summary Judgment 1. Constitutional Claims Under First and Fourteenth Amendments a. Claims Against the NIH and the USDE Defendants argue that the Court should dismiss Plaintiffs constitutional claims under the First and Fourteenth Amendments against the NIH and the USDE in Counts I — III because the Court lacks subject matter jurisdiction over these claims as to these Defendants due to sovereign immunity. (Def. Mem. at 10.) Unless waived, sovereign immunity protects the federal government and its agencies from suit and deprives a court of subject matter jurisdiction. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); United States v. Jones, 225 F.3d 468, 470 (4th Cir.2000). Unlike the USPS in its “sue or be sued” clause, 39 U.S.C. § 401(1), the NIH and USDE have not waived their sovereign immunity from suit for constitutional claims. As a result, the Court finds that it does not have subject matter jurisdiction over Plaintiffs claims in Count I — III against the NIH and the USDE. Accordingly, these claims must be dismissed, b. Claims Against the USPS As noted above, Defendants acknowledge the USPS’s waiver of sovereign immunity from suit for constitutional claims. See 39 U.S.C. § 401(1); Franchise Tax Bd. of California v. U.S. Postal Serv., 467 U.S. 512, 517-18, 104 S.Ct. 2549, 81 L.Ed.2d 446 (1984). Nonetheless, Defendants argue the Court also should dismiss Plaintiffs constitutional claims under the First

Defendants due to sovereign immunity. (Def. Mem. at 10.) Unless waived, sovereign immunity protects the federal government and its agencies from suit and deprives a court of subject matter jurisdiction. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); United States v. Jones, 225 F.3d 468, 470 (4th Cir.2000). Unlike the USPS in its “sue or be sued” clause, 39 U.S.C. § 401(1), the NIH and USDE have not waived their sovereign immunity from suit for constitutional claims. As a result, the Court finds that it does not have subject matter jurisdiction over Plaintiffs claims in Count I — III against the NIH and the USDE. Accordingly, these claims must be dismissed, b. Claims Against the USPS As noted above, Defendants acknowledge the USPS’s waiver of sovereign immunity from suit for constitutional claims. See 39 U.S.C. § 401(1); Franchise Tax Bd. of California v. U.S. Postal Serv., 467 U.S. 512, 517-18, 104 S.Ct. 2549, 81 L.Ed.2d 446 (1984). Nonetheless, Defendants argue the Court also should dismiss Plaintiffs constitutional claims under the First and Fourteenth Amendment against the USPS in Counts I — III for both monetary and injunctive relief. First, Defendants argue that Plaintiffs claims for monetary relief under these counts should be dismissed because Plaintiff improperly attempts to use Section 1983 in Counts I-III. Section 1983 applies only to state actors acting under the color of state law, not to federal actors. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir.1998). As a result, these claims for monetary relief should be dismissed. (Def. Mem. at 12.) Even construing these claims under Section 1983 as claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court still must dismiss these claims. A Bivens action cannot be maintained against federal agencies or federal agency officials sued in their official capacities, as is the case here. Meyer, 510 U.S. at 485-86, 114 S.Ct. 996; Doe v. Chao, 306 F.3d 170, 184 (4th Cir.2002), aff'd on other grounds, 540 U.S. 614, 124 S.Ct. 1204,

and Fourteenth Amendment against the USPS in Counts I — III for both monetary and injunctive relief. First, Defendants argue that Plaintiffs claims for monetary relief under these counts should be dismissed because Plaintiff improperly attempts to use Section 1983 in Counts I-III. Section 1983 applies only to state actors acting under the color of state law, not to federal actors. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir.1998). As a result, these claims for monetary relief should be dismissed. (Def. Mem. at 12.) Even construing these claims under Section 1983 as claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court still must dismiss these claims. A Bivens action cannot be maintained against federal agencies or federal agency officials sued in their official capacities, as is the case here. Meyer, 510 U.S. at 485-86, 114 S.Ct. 996; Doe v. Chao, 306 F.3d 170, 184 (4th Cir.2002), aff'd on other grounds, 540 U.S. 614, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004). Therefore, whether brought under Section 1983 or Bivens, Plaintiffs claims for monetary relief against the USPS under Count I — III must be dismissed. Second, Defendants argue that Plaintiffs claims for injunctive relief under these counts should be dismissed for a number of independent reasons. (Def. Mem. at 13-20). The Court finds that these claims should be dismissed based on the first reason proffered by Defendants: that the remedies available to federal employees under the Civil Service Reform Act (“CSRA”) preclude claims for injunctive relief against a federal agency which challenge the merits of the agency’s administrative personnel decisions. (Id. at 13-14.) Under Fourth Circuit precedent, the remedial regime established by the CSRA for federal employees precludes a court from hearing such claims and the claims must be dismissed for lack of subject matter jurisdiction. See Yokum v. U.S. Postal Service, 877 F.2d 276, 280-81 (4th Cir.l989)(holding CSRA precluded judicial review of merits of administrative personnel decision even where postal service employee was excluded from scope of protections provided for under the

157 L.Ed.2d 1122 (2004). Therefore, whether brought under Section 1983 or Bivens, Plaintiffs claims for monetary relief against the USPS under Count I — III must be dismissed. Second, Defendants argue that Plaintiffs claims for injunctive relief under these counts should be dismissed for a number of independent reasons. (Def. Mem. at 13-20). The Court finds that these claims should be dismissed based on the first reason proffered by Defendants: that the remedies available to federal employees under the Civil Service Reform Act (“CSRA”) preclude claims for injunctive relief against a federal agency which challenge the merits of the agency’s administrative personnel decisions. (Id. at 13-14.) Under Fourth Circuit precedent, the remedial regime established by the CSRA for federal employees precludes a court from hearing such claims and the claims must be dismissed for lack of subject matter jurisdiction. See Yokum v. U.S. Postal Service, 877 F.2d 276, 280-81 (4th Cir.l989)(holding CSRA precluded judicial review of merits of administrative personnel decision even where postal service employee was excluded from scope of protections provided for under the CSRA); Pinar v. Dole, 747 F.2d 899, 909 (4th Cir.1984). Plaintiff concedes that he was, at all times relevant, a postal service federal employee, but he does not allege that he is a preference eligible postal service employee who, accordingly, can access judicial review of the merits of an agency’s decision via Chapter 75 of the CSRA. Therefore, the Court lacks subject matter jurisdiction to hear Plaintiffs claims for injunctive relief in Counts I — III against the USPS as “any employee, including one in the Postal Service, who is not included in the provisions of Chapter 75 was intended by Congress not to have the right to judicial review” over such claims. Yokum, 877 F.2d at 280 (quoting Witzkoske v. United States Postal Service, 848 F.2d 70, 73 (5th Cir.1988)). Accordingly, the Court dismisses Plaintiffs claims for injunctive relief against the USPS under Count I-III. 2. Title VII Religious Discrimination Claim Defendants argue that the Court should grant summary judgment on Plaintiffs Title VII discrimination claims against all Defendants in Counts IV because Plaintiff failed to

CSRA); Pinar v. Dole, 747 F.2d 899, 909 (4th Cir.1984). Plaintiff concedes that he was, at all times relevant, a postal service federal employee, but he does not allege that he is a preference eligible postal service employee who, accordingly, can access judicial review of the merits of an agency’s decision via Chapter 75 of the CSRA. Therefore, the Court lacks subject matter jurisdiction to hear Plaintiffs claims for injunctive relief in Counts I — III against the USPS as “any employee, including one in the Postal Service, who is not included in the provisions of Chapter 75 was intended by Congress not to have the right to judicial review” over such claims. Yokum, 877 F.2d at 280 (quoting Witzkoske v. United States Postal Service, 848 F.2d 70, 73 (5th Cir.1988)). Accordingly, the Court dismisses Plaintiffs claims for injunctive relief against the USPS under Count I-III. 2. Title VII Religious Discrimination Claim Defendants argue that the Court should grant summary judgment on Plaintiffs Title VII discrimination claims against all Defendants in Counts IV because Plaintiff failed to exhaust his administrative remedies by filing his suit in federal court prematurely, a error that is not jurisdictional, or in the alternative, that the Court should dismiss the claims in Count IV for failure to state a claim. (Def. Mem. at 21-26.) The Court will resolve this count under Defendants’ first argument. Under this argument, Defendants move for summary judgment, rather than dismissal, for two reasons. To begin, Plaintiff did not include in either of his complaints any information regarding his administrative complaint and the corresponding timeline for his filing in federal court. [See Dkt. 1, 2.] As a result, Defendants must rely on evidentiary materials outside of the pleadings. (Def. Mem. at 21 n. 15.) In addition, the Fourth Circuit has held that a court’s subject matter jurisdiction was not impacted by whether a federal-sector Title VII complaint was timely filed with respect to the exhaustion of administrative remedies. Laber v. Harvey, 438 F.3d 404, 429 n. 25 (4th Cir.2006). Given the non-jurisdietional nature of their argument, Defendants cannot rely on extraneous materials without converting

exhaust his administrative remedies by filing his suit in federal court prematurely, a error that is not jurisdictional, or in the alternative, that the Court should dismiss the claims in Count IV for failure to state a claim. (Def. Mem. at 21-26.) The Court will resolve this count under Defendants’ first argument. Under this argument, Defendants move for summary judgment, rather than dismissal, for two reasons. To begin, Plaintiff did not include in either of his complaints any information regarding his administrative complaint and the corresponding timeline for his filing in federal court. [See Dkt. 1, 2.] As a result, Defendants must rely on evidentiary materials outside of the pleadings. (Def. Mem. at 21 n. 15.) In addition, the Fourth Circuit has held that a court’s subject matter jurisdiction was not impacted by whether a federal-sector Title VII complaint was timely filed with respect to the exhaustion of administrative remedies. Laber v. Harvey, 438 F.3d 404, 429 n. 25 (4th Cir.2006). Given the non-jurisdietional nature of their argument, Defendants cannot rely on extraneous materials without converting the motion to dismiss to a motion for summary judgment. Foreseeing this, Defendants therefore presented the argument against Counts IV-V via a motion for summary judgment included in the same document as their motion to dismiss. Based on the undisputed facts here, including the administrative and judicial record, and drawing all inferences in favor of Plaintiff, the Courts concludes that there is no genuine dispute of material fact regarding whether Plaintiff failed to timely exhaust his administrative remedies. Summary judgment on Count IV thus must be granted. Under the relevant timeline for administrative exhaustion here, Title VII provides that a federal employee only can file his or her complaint in federal court after the completion of a 180 day period from the filing of his or her administrative complaint with the agency. See 42 U.S.C. § 2000e-16(c) (providing that “after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit ... an employee or applicant for employment, if aggrieved ... by the failure to take final action on

the motion to dismiss to a motion for summary judgment. Foreseeing this, Defendants therefore presented the argument against Counts IV-V via a motion for summary judgment included in the same document as their motion to dismiss. Based on the undisputed facts here, including the administrative and judicial record, and drawing all inferences in favor of Plaintiff, the Courts concludes that there is no genuine dispute of material fact regarding whether Plaintiff failed to timely exhaust his administrative remedies. Summary judgment on Count IV thus must be granted. Under the relevant timeline for administrative exhaustion here, Title VII provides that a federal employee only can file his or her complaint in federal court after the completion of a 180 day period from the filing of his or her administrative complaint with the agency. See 42 U.S.C. § 2000e-16(c) (providing that “after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit ... an employee or applicant for employment, if aggrieved ... by the failure to take final action on his complaint, may file a civil action ... ”); 29 C.F.R. § 1614.407(b) (stating that a federal employee may file in district court “after 180 days from the date of filing an individual or class [administrative] complaint if an appeal has not been filed and final action has not been taken”). In this case, on May 12, 2012, Plaintiff filed his administrative complaint with the USPS regarding the alleged employment discrimination arising from the April 19, 2012 incident. [Dkt. 9-1.] When he filed his original complaint in this Court on July 13, 2012 [Dkt. 1], Plaintiff had not yet received a final agency decision given that a hearing on his claims had not occurred yet in front of an Administrative Judge. In addition, the 180 day waiting period had not yet finished, regardless of whether the commencement of this period began with Plaintiffs May 12, 2012 administrative complaint which directly addressed the discrimination at issue here or with Plaintiffs earlier (March 12, 2012) administrative complaint of which the USPS concluded the May administrative complaint was an

his complaint, may file a civil action ... ”); 29 C.F.R. § 1614.407(b) (stating that a federal employee may file in district court “after 180 days from the date of filing an individual or class [administrative] complaint if an appeal has not been filed and final action has not been taken”). In this case, on May 12, 2012, Plaintiff filed his administrative complaint with the USPS regarding the alleged employment discrimination arising from the April 19, 2012 incident. [Dkt. 9-1.] When he filed his original complaint in this Court on July 13, 2012 [Dkt. 1], Plaintiff had not yet received a final agency decision given that a hearing on his claims had not occurred yet in front of an Administrative Judge. In addition, the 180 day waiting period had not yet finished, regardless of whether the commencement of this period began with Plaintiffs May 12, 2012 administrative complaint which directly addressed the discrimination at issue here or with Plaintiffs earlier (March 12, 2012) administrative complaint of which the USPS concluded the May administrative complaint was an amendment. Given Plaintiffs premature filing in federal court, the Court concludes that the undisputed facts indicate that Plaintiff failed to timely exhaust his administrative remedies and therefore, the Court grants Defendants summary judgment on the claim in Count IV. 3. Title II Genetic Information Discrimination Claim The Court construes Count V as a genetic information non-discrimination claim under the Genetic Information Nondiscrimination Act (GINA) instead of a discrimination claim under Title VII. Plaintiff identifies the claim as arising under GINA in the titling of that count, although he also improperly cites to Title VII as well and elsewhere in that count. Nonetheless, given the Court’s liberal construal of pro se plaintiffs’ claims, the Court finds it most appropriate to analyze Count V as arising under GINA because that statute actually provides for a cause of action arising from discrimination on the basis of genetic information. The Court concludes, however, that Plaintiff fails to state a claim under GINA. GINA provides that an employer may not “discriminate against any employee with respect to the compensation, terms, conditions, or privileges

amendment. Given Plaintiffs premature filing in federal court, the Court concludes that the undisputed facts indicate that Plaintiff failed to timely exhaust his administrative remedies and therefore, the Court grants Defendants summary judgment on the claim in Count IV. 3. Title II Genetic Information Discrimination Claim The Court construes Count V as a genetic information non-discrimination claim under the Genetic Information Nondiscrimination Act (GINA) instead of a discrimination claim under Title VII. Plaintiff identifies the claim as arising under GINA in the titling of that count, although he also improperly cites to Title VII as well and elsewhere in that count. Nonetheless, given the Court’s liberal construal of pro se plaintiffs’ claims, the Court finds it most appropriate to analyze Count V as arising under GINA because that statute actually provides for a cause of action arising from discrimination on the basis of genetic information. The Court concludes, however, that Plaintiff fails to state a claim under GINA. GINA provides that an employer may not “discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee.” 42 U.S.C. § 2000ff-1(a)(1). The Act defines “genetic information” as (1) an individual’s genetic tests; (2) the genetic tests of the individual’s family members; (3) the manifestation of a disease or disorder of the individual’s family members; (4) an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or the individual’s family member; and (5) the genetic information of a fetus. See 42 U.S.C. § 2000ff(4)(A); see also 29 C.F.R. § 1635.3(c). In light of this definition of genetic information, the Court finds that Plaintiff has not pled any facts indicating that any of the Defendants requested or obtained Plaintiffs “genetic information” and discriminated against him on the basis of such “genetic information.” See Bullock v. Spherion, No. 3:10-CV-465, 2011 WL 1869933, at *6 (W.D.N.C. May 16, 2011). Instead, Plaintiff only alleges that that the USPS instructed him not to post his book advertisement which allegedly explains “how DNA

of employment of the employee, because of genetic information with respect to the employee.” 42 U.S.C. § 2000ff-1(a)(1). The Act defines “genetic information” as (1) an individual’s genetic tests; (2) the genetic tests of the individual’s family members; (3) the manifestation of a disease or disorder of the individual’s family members; (4) an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or the individual’s family member; and (5) the genetic information of a fetus. See 42 U.S.C. § 2000ff(4)(A); see also 29 C.F.R. § 1635.3(c). In light of this definition of genetic information, the Court finds that Plaintiff has not pled any facts indicating that any of the Defendants requested or obtained Plaintiffs “genetic information” and discriminated against him on the basis of such “genetic information.” See Bullock v. Spherion, No. 3:10-CV-465, 2011 WL 1869933, at *6 (W.D.N.C. May 16, 2011). Instead, Plaintiff only alleges that that the USPS instructed him not to post his book advertisement which allegedly explains “how DNA works” and that the NIH and USDE refuses to incorporate his genetic and religious theory on DNA into their testing and public education curriculum. Plaintiffs book and accompanying genetic and religious theory on DNA do not constitute “genetic information” under GINA. As a result, Plaintiff has failed to state plausibly a claim for genetic information discrimination under GINA, and Count V therefore must be dismissed. C. Plaintiffs Motion for Settlement Given the Court’s decision to dismiss Counts I — III and V and grant summary judgment in favor of Defendants on Count IV, the Court finds that Plaintiffs Motion for Settlement should be denied. IV. Conclusion For the foregoing reasons, the Court will grant Defendants’ Motion to Strike. The Court also will grant Defendants’ Motion to Dismiss and for Summary Judgment, dismissing Plaintiffs claims in Counts I — III and V against all Defendants and granting summary judgment to all Defendants on Plaintiffs claims in Count IV. The Court will deny Plaintiffs Motion for Settlement. An appropriate Order will issue. MEMORANDUM OPINION This matter is before the Court on pro se Plaintiff

works” and that the NIH and USDE refuses to incorporate his genetic and religious theory on DNA into their testing and public education curriculum. Plaintiffs book and accompanying genetic and religious theory on DNA do not constitute “genetic information” under GINA. As a result, Plaintiff has failed to state plausibly a claim for genetic information discrimination under GINA, and Count V therefore must be dismissed. C. Plaintiffs Motion for Settlement Given the Court’s decision to dismiss Counts I — III and V and grant summary judgment in favor of Defendants on Count IV, the Court finds that Plaintiffs Motion for Settlement should be denied. IV. Conclusion For the foregoing reasons, the Court will grant Defendants’ Motion to Strike. The Court also will grant Defendants’ Motion to Dismiss and for Summary Judgment, dismissing Plaintiffs claims in Counts I — III and V against all Defendants and granting summary judgment to all Defendants on Plaintiffs claims in Count IV. The Court will deny Plaintiffs Motion for Settlement. An appropriate Order will issue. MEMORANDUM OPINION This matter is before the Court on pro se Plaintiff Kenneth Smith’s Motion for Reconsideration (the “Motion”). [Dkt. 23.] For the following reasons, the Court will deny Plaintiffs Motion. I. Background The facts of this case are recounted in the Court’s Memorandum Opinion dated January 8, 2013, familiarity with which is presumed. On July 13, 2012, Plaintiff filed a Complaint in this Court against Patrick R. Donahoe, Postmaster General, USPS; Dr. Francis Collins, Director, NIH; and Arne Duncan, Secretary of Education, USDE, bringing suit against these federal agencies and the named officers in their official capacity. [Dkt. 1.] On August 3, 2012, Plaintiff filed an essentially identical Amended Complaint against the same parties, only adding a Certificate of Service. [Dkt. 2.] Plaintiff brought five causes of action against all defendants: (1) a First Amendment retaliation claim under 42 U.S.C. § 1983 (Count I); (2) a First Amendment viewpoint discrimination claim under 42 U.S.C. § 1983 (Count II); a Fourteenth Amendment equal protection claim under 42 U.S.C. § 1983 (Count III); a Title VII religious discrimination claim under 42 U.S.C. § 2000e (Count IV); and a Title II

Kenneth Smith’s Motion for Reconsideration (the “Motion”). [Dkt. 23.] For the following reasons, the Court will deny Plaintiffs Motion. I. Background The facts of this case are recounted in the Court’s Memorandum Opinion dated January 8, 2013, familiarity with which is presumed. On July 13, 2012, Plaintiff filed a Complaint in this Court against Patrick R. Donahoe, Postmaster General, USPS; Dr. Francis Collins, Director, NIH; and Arne Duncan, Secretary of Education, USDE, bringing suit against these federal agencies and the named officers in their official capacity. [Dkt. 1.] On August 3, 2012, Plaintiff filed an essentially identical Amended Complaint against the same parties, only adding a Certificate of Service. [Dkt. 2.] Plaintiff brought five causes of action against all defendants: (1) a First Amendment retaliation claim under 42 U.S.C. § 1983 (Count I); (2) a First Amendment viewpoint discrimination claim under 42 U.S.C. § 1983 (Count II); a Fourteenth Amendment equal protection claim under 42 U.S.C. § 1983 (Count III); a Title VII religious discrimination claim under 42 U.S.C. § 2000e (Count IV); and a Title II Genetic Information Non-discrimination Act claim purportedly under 42 U.S.C. § 2000e-16c(a). (Id. ¶ 30-54.) On November 30, 2012, Defendant filed a motion to dismiss and for summary judgment. [Dkts. 8, 13.] On January 8, 2013, this Court granted that motion, dismissing Counts I — III and V against all Defendants and granting summary judgment to all Defendants on Count IV. [Dkts. 20-21.] On January 17, 2013, Plaintiff filed a Motion for Reconsideration. [Dkt. 23.] Defendants filed their opposition on January 22,2013. [Dkt. 26.] Plaintiffs Motion is before the Court. II. Standard of Review The Federal Rules of Civil Procedure do not provide a vehicle for a motion for reconsideration. Rather, they provide for a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from judgment. Plaintiff does not specify whether he is bringing his Motion pursuant to Rule 59(e) or 60(b). Pursuant to Rule 59(e), “a motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). The Fourth

Genetic Information Non-discrimination Act claim purportedly under 42 U.S.C. § 2000e-16c(a). (Id. ¶ 30-54.) On November 30, 2012, Defendant filed a motion to dismiss and for summary judgment. [Dkts. 8, 13.] On January 8, 2013, this Court granted that motion, dismissing Counts I — III and V against all Defendants and granting summary judgment to all Defendants on Count IV. [Dkts. 20-21.] On January 17, 2013, Plaintiff filed a Motion for Reconsideration. [Dkt. 23.] Defendants filed their opposition on January 22,2013. [Dkt. 26.] Plaintiffs Motion is before the Court. II. Standard of Review The Federal Rules of Civil Procedure do not provide a vehicle for a motion for reconsideration. Rather, they provide for a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from judgment. Plaintiff does not specify whether he is bringing his Motion pursuant to Rule 59(e) or 60(b). Pursuant to Rule 59(e), “a motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). The Fourth Circuit has interpreted a motion for reconsideration as a motion to alter or amend a judgment pursuant to Rule 59(e) where that motion has been filed within the specified time period. See Lee-Thomas v. Prince George’s County Pub. Sch., 666 F.3d 244, 247 n. 4 (4th Cir.2012); Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 n. 4 (4th Cir.2011). Here, Plaintiffs Motion was filed within 28 days of the Court’s January 8, 2013 Memorandum Opinion and Order dismissing his Complaint on Counts I—III and V and granting Defendants summary judgment on Count IV. Accordingly, Plaintiffs Motion will be construed as a Rule 59(e) motion to alter or amend a judgment. See Fed.R.Civ.P. 59(e). The Fourth Circuit has made it clear that “[a] district court has the discretion to grant a Rule 59(e) motion only in very narrow circumstances: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Hill v. Braxton, 277

Circuit has interpreted a motion for reconsideration as a motion to alter or amend a judgment pursuant to Rule 59(e) where that motion has been filed within the specified time period. See Lee-Thomas v. Prince George’s County Pub. Sch., 666 F.3d 244, 247 n. 4 (4th Cir.2012); Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 n. 4 (4th Cir.2011). Here, Plaintiffs Motion was filed within 28 days of the Court’s January 8, 2013 Memorandum Opinion and Order dismissing his Complaint on Counts I—III and V and granting Defendants summary judgment on Count IV. Accordingly, Plaintiffs Motion will be construed as a Rule 59(e) motion to alter or amend a judgment. See Fed.R.Civ.P. 59(e). The Fourth Circuit has made it clear that “[a] district court has the discretion to grant a Rule 59(e) motion only in very narrow circumstances: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir.2002) (quoting Collison v. Int’l Chem. Workers Union, 34 F.3d 233, 236 (4th Cir.1994)) (internal quotations omitted). A party’s mere disagreement with the court’s ruling does not warrant a Rule 59(e) motion, and such motions should not be used “to raise arguments which could have been raised prior to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). Rather, the purpose of Rule 59(e) motion is to allow “a district court to correct its own errors, ‘sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.’ ” Id. (quoting Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.1995)). A Rule 59(e) motion is “an extraordinary remedy which should be used sparingly.” Pac. Ins. Co., 148 F.3d at 403. III. Analysis Here, relief from this Court’s dismissal of

F.3d 701, 708 (4th Cir.2002) (quoting Collison v. Int’l Chem. Workers Union, 34 F.3d 233, 236 (4th Cir.1994)) (internal quotations omitted). A party’s mere disagreement with the court’s ruling does not warrant a Rule 59(e) motion, and such motions should not be used “to raise arguments which could have been raised prior to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). Rather, the purpose of Rule 59(e) motion is to allow “a district court to correct its own errors, ‘sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.’ ” Id. (quoting Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.1995)). A Rule 59(e) motion is “an extraordinary remedy which should be used sparingly.” Pac. Ins. Co., 148 F.3d at 403. III. Analysis Here, relief from this Court’s dismissal of Plaintiffs Complaint on Counts I — III and V and grant of summary judgment in favor of Defendants on Count IV is unwarranted under Rule 59(e). Plaintiff has made no showing of (i) an intervening change in controlling law, (ii) new evidence that was not available to him previously, or (iii) a clear error of law or manifest injustice that would otherwise result. For the reasons set forth in this Court’s January 8, 2013 Memorandum Opinion, this Court dismissed Counts I—III against the NIH and USDE for lack of subject matter jurisdiction over those claims against those Defendants due to sovereign immunity; dismissed claims for monetary relief in Counts I — III against the USPS because these claims could not be maintained under Section 1983 or as a Bivens action against federal agencies or federal agency officials sued in their official capacities; dismissed claims for injunctive relief in Counts I — III against the USPS for lack of subject matter jurisdiction due to the exclusive remedies provided by the Civil Service Reform Act; dismissed Count

Plaintiffs Complaint on Counts I — III and V and grant of summary judgment in favor of Defendants on Count IV is unwarranted under Rule 59(e). Plaintiff has made no showing of (i) an intervening change in controlling law, (ii) new evidence that was not available to him previously, or (iii) a clear error of law or manifest injustice that would otherwise result. For the reasons set forth in this Court’s January 8, 2013 Memorandum Opinion, this Court dismissed Counts I—III against the NIH and USDE for lack of subject matter jurisdiction over those claims against those Defendants due to sovereign immunity; dismissed claims for monetary relief in Counts I — III against the USPS because these claims could not be maintained under Section 1983 or as a Bivens action against federal agencies or federal agency officials sued in their official capacities; dismissed claims for injunctive relief in Counts I — III against the USPS for lack of subject matter jurisdiction due to the exclusive remedies provided by the Civil Service Reform Act; dismissed Count V against all Defendants for failure to state a claim for genétic information discrimination; and granted summary judgment to Defendants on Count IV because Plaintiff failed to timely exhaust his administrative remedies. In his Motion, Plaintiff simply disagrees with this Court’s dismissal of Counts I — III and V and grant of summary judgment on Count IV, and accordingly, the proper avenue for contesting the dismissal on this ground is to appeal the decision to the United States Court of Appeals for the Fourth Circuit by filing a notice of appeal within 60 days of the entry of the Court’s January 8, 2013 Order, as stated in that Order. IV. Conclusion For the foregoing reasons, the Court will deny Plaintiffs Motion. An appropriate Order will issue. . The Court notes that though there are two docket entries to reflect the two motions, De fendants filed both motions in one document and support their motions with a single memorandum of law in support. . The Court notes that the document is dated "March 21, 2012” but concludes that this clearly was meant

V against all Defendants for failure to state a claim for genétic information discrimination; and granted summary judgment to Defendants on Count IV because Plaintiff failed to timely exhaust his administrative remedies. In his Motion, Plaintiff simply disagrees with this Court’s dismissal of Counts I — III and V and grant of summary judgment on Count IV, and accordingly, the proper avenue for contesting the dismissal on this ground is to appeal the decision to the United States Court of Appeals for the Fourth Circuit by filing a notice of appeal within 60 days of the entry of the Court’s January 8, 2013 Order, as stated in that Order. IV. Conclusion For the foregoing reasons, the Court will deny Plaintiffs Motion. An appropriate Order will issue. . The Court notes that though there are two docket entries to reflect the two motions, De fendants filed both motions in one document and support their motions with a single memorandum of law in support. . The Court notes that the document is dated "March 21, 2012” but concludes that this clearly was meant to read "May 21, 2012” given that the document refers to incidents occurring on dates after March (e.g. the alleged occurrence of discrimination in April 2012 and Plaintiff’s filing of his administrative complaint in May 2012). . In that earlier administrative complaint, Plaintiff alleged discrimination on the basis of race, religion, and genetic information, as well as retaliation, when he was passed over for overtime and was charged with absence without leave. (Id. at 12.) Plaintiff does not raise these allegations in the instant case. . The Court agrees with Defendants’ construal of Plaintiff's complaint as being brought only against the federal agencies and the named officers in their official capacity, as opposed to the officers' individual capacities. As Defendants note, Plaintiff never asserts that he is suing these officials in their individual capacities nor provides any allegations that these individual government officials personally undertook actions against Plaintiff with respect to the incidents giving rise to this suit. Instead, Plaintiff makes references which indicate that he intends to bring this action against the agencies and the officials

to read "May 21, 2012” given that the document refers to incidents occurring on dates after March (e.g. the alleged occurrence of discrimination in April 2012 and Plaintiff’s filing of his administrative complaint in May 2012). . In that earlier administrative complaint, Plaintiff alleged discrimination on the basis of race, religion, and genetic information, as well as retaliation, when he was passed over for overtime and was charged with absence without leave. (Id. at 12.) Plaintiff does not raise these allegations in the instant case. . The Court agrees with Defendants’ construal of Plaintiff's complaint as being brought only against the federal agencies and the named officers in their official capacity, as opposed to the officers' individual capacities. As Defendants note, Plaintiff never asserts that he is suing these officials in their individual capacities nor provides any allegations that these individual government officials personally undertook actions against Plaintiff with respect to the incidents giving rise to this suit. Instead, Plaintiff makes references which indicate that he intends to bring this action against the agencies and the officials in their official capacity. (See e.g. Am. Comp. ¶ 2-4, 11-12 (referring solely to the agencies), ¶ 7 (citing 28 U.S.C. § 1391(e) which discusses where civil actions may be brought when the suits are brought against federal government officials in their official capacities), and ¶ 17 (expressly seeking monetary damages from the agencies and “those in their official capacity”).). . The Court notes that Plaintiff had actual notice that the Court might consider Plaintiff's motion as a motion for summary judgment on Counts IV-V based on the titling of Defendants’ motion and on Defendants’ submission of evidence extrinsic to the pleadings. Therefore, " "by operation of the Federal Rules of Civil Procedure, [plaintiff] also should have been on notice that the ... motion could be considered by the court to be a summary judgment motion.” ” Talbot v. U.S. Foodservice, Inc., 191 F.Supp.2d 637, 639 n. 3 (D.Md.2002) (quoting Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260-61 (4th Cir.1998)).

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS’ [DKT. #31] MOTION TO DISMISS VANESSA L. BRYANT, District Judge. The Defendants, Lebanon Board of Education, (the “Board”) and the Superintended of the Board, Janet Tyler (“Tyler”), have moved to dismiss the Plaintiff Malcom Leichter, Jr. (“Leichter”)’s amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In the amended complaint, Plaintiff brings various causes of action in connection with his placement on administrative leave and then the elimination of his position as the Director of Business and Technology for the Lebanon Public School System, including violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, et seq., violation of his due process and equal protection rights under 42 U.S.C. § 1983, as well as state law claims for breach of contract, breach of implied covenant of good faith and fair dealing, failure to pay wages in violation of Conn. Gen.Stat. § 31-71a et seq., violation of the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen.Stat. § 46a-51 et seq. and for punitive damages. For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss. Procedural Background On August 8, 2012, the Plaintiff amended his complaint. See [Dkt. #29]. On August 29, 2012, the Defendants moved to dismiss the Plaintiffs Monell claim, due process claims, equal protection claim, ADA and Section 504 claims against Defendant Tyler, breach of contract claim, breach of implied covenant of good faith and fair dealing claim and claim for punitive damages against the Board. Defendants argued that the ADA and Section 504 claims against Defendant Tyler should be dismissed on the basis there is no individual liability under either statute. See [Dkt. # 32, p. 15]. Recognizing their impropriety, the Plaintiff consented to the withdrawal of those claims against Tyler. [Dkt. #37, p. 21]. The Court therefore dismisses the ADA and Section 504 claims against Tyler. In addition, Defendants moved to dismiss the Plaintiffs equal protection claim on the basis

seq., violation of the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen.Stat. § 46a-51 et seq. and for punitive damages. For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss. Procedural Background On August 8, 2012, the Plaintiff amended his complaint. See [Dkt. #29]. On August 29, 2012, the Defendants moved to dismiss the Plaintiffs Monell claim, due process claims, equal protection claim, ADA and Section 504 claims against Defendant Tyler, breach of contract claim, breach of implied covenant of good faith and fair dealing claim and claim for punitive damages against the Board. Defendants argued that the ADA and Section 504 claims against Defendant Tyler should be dismissed on the basis there is no individual liability under either statute. See [Dkt. # 32, p. 15]. Recognizing their impropriety, the Plaintiff consented to the withdrawal of those claims against Tyler. [Dkt. #37, p. 21]. The Court therefore dismisses the ADA and Section 504 claims against Tyler. In addition, Defendants moved to dismiss the Plaintiffs equal protection claim on the basis that disability is not a protected class. See [Dkt. # 32, p. 15]. Plaintiff also consented to the withdrawal of that claim in his response as well. [Dkt. # 37, p. 21]. The Court therefore dismisses the Plaintiffs equal protection claim. After Plaintiff responded to the motion to dismiss, the Plaintiff moved to withdraw his claim for intentional infliction of emotional distress and all claims in any counts of the amended complaint for damages for emotional distress, which the Court granted. [Dkt. ## 40-41]. Consequently, arguments relating to the withdrawn intentional infliction of emotional distress claim are moot. Factual Allegations On October 25, 1996, the Plaintiff and the Board executed an employment agreement whereby the Plaintiff was hired as of November 4, 1996 as the Director of Business and Technology for the Lebanon Public Schools. [Dkt. # 29, Amended Compl., ¶ 13]. On June 26, 1997, the Plaintiff and the Board executed a second employment agreement which modified some terms which are not relevant to the issues in the present case. Id. at ¶ 14. The agreement provides in

that disability is not a protected class. See [Dkt. # 32, p. 15]. Plaintiff also consented to the withdrawal of that claim in his response as well. [Dkt. # 37, p. 21]. The Court therefore dismisses the Plaintiffs equal protection claim. After Plaintiff responded to the motion to dismiss, the Plaintiff moved to withdraw his claim for intentional infliction of emotional distress and all claims in any counts of the amended complaint for damages for emotional distress, which the Court granted. [Dkt. ## 40-41]. Consequently, arguments relating to the withdrawn intentional infliction of emotional distress claim are moot. Factual Allegations On October 25, 1996, the Plaintiff and the Board executed an employment agreement whereby the Plaintiff was hired as of November 4, 1996 as the Director of Business and Technology for the Lebanon Public Schools. [Dkt. # 29, Amended Compl., ¶ 13]. On June 26, 1997, the Plaintiff and the Board executed a second employment agreement which modified some terms which are not relevant to the issues in the present case. Id. at ¶ 14. The agreement provides in relevant part: Section I: Continuation of Contract and Salary Agreement This contract shall be renewed annually. For each year for which this contract is renewed, the annual salary of the Director of Business & Technology shall be established by mutual agreement between the Director of Business & Technology and the Board. Section II: Continuation of Contract and Salary Agreement The contract may be terminated at any time by mutual consent of the parties. It may also be terminated by the Board for cause. The Director of Business & Technology may resign or retire by submitting at least thirty (30) days written notice to the Board. [Dkt. # 29, Ex. E, Second Employment Agreement, p. 1]. Prior to working for the Board, the Plaintiff was employed as an information systems services manager at Internal Business Machines (“IBM”). [Dkt. #29, Amended Compl., ¶ 16]. Plaintiff continued to be employed under the agreement as the Director of Business and Technology until January 28, 2011 and was earning $102, 229 per year in his position at the time of his termination. Id. at ¶ 20. Superintendent

relevant part: Section I: Continuation of Contract and Salary Agreement This contract shall be renewed annually. For each year for which this contract is renewed, the annual salary of the Director of Business & Technology shall be established by mutual agreement between the Director of Business & Technology and the Board. Section II: Continuation of Contract and Salary Agreement The contract may be terminated at any time by mutual consent of the parties. It may also be terminated by the Board for cause. The Director of Business & Technology may resign or retire by submitting at least thirty (30) days written notice to the Board. [Dkt. # 29, Ex. E, Second Employment Agreement, p. 1]. Prior to working for the Board, the Plaintiff was employed as an information systems services manager at Internal Business Machines (“IBM”). [Dkt. #29, Amended Compl., ¶ 16]. Plaintiff continued to be employed under the agreement as the Director of Business and Technology until January 28, 2011 and was earning $102, 229 per year in his position at the time of his termination. Id. at ¶ 20. Superintendent Tyler began working for the Board on or about July 26, 2010. Id. at 1121. Plaintiff alleges that he “never had any issues with the prior three superintendents to whom he reported and all of Plaintiffs job performance evaluations were positive.” Id. Plaintiff further alleges that from the beginning of her tenure, Tyler “expressed displeasure with the Plaintiff due to his disabilities which required him to miss time at work for surgery and cardiac rehabilitation.” Id. at ¶ 22. Plaintiff suffered from heart attacks and had a cardiac catheterization on July 27, 2010 and a second catheterization on August 11, 2010. Id. at ¶23. Plaintiff returned to work full time on August 23, 2012 with a restriction that he could not work past six at night. Id. at ¶ 24. On September 23, 2010, Plaintiff began a cardiac rehabilitation program which ran three times a week for twelve weeks. Id. at ¶ 25. Plaintiff alleges that Tyler made “many derogatory and hurtful remarks about Plaintiff not being in the office due to his cardiologist ordered cardiac

Tyler began working for the Board on or about July 26, 2010. Id. at 1121. Plaintiff alleges that he “never had any issues with the prior three superintendents to whom he reported and all of Plaintiffs job performance evaluations were positive.” Id. Plaintiff further alleges that from the beginning of her tenure, Tyler “expressed displeasure with the Plaintiff due to his disabilities which required him to miss time at work for surgery and cardiac rehabilitation.” Id. at ¶ 22. Plaintiff suffered from heart attacks and had a cardiac catheterization on July 27, 2010 and a second catheterization on August 11, 2010. Id. at ¶23. Plaintiff returned to work full time on August 23, 2012 with a restriction that he could not work past six at night. Id. at ¶ 24. On September 23, 2010, Plaintiff began a cardiac rehabilitation program which ran three times a week for twelve weeks. Id. at ¶ 25. Plaintiff alleges that Tyler made “many derogatory and hurtful remarks about Plaintiff not being in the office due to his cardiologist ordered cardiac rehabilitation, and the restrictions placed upon him regarding the length of his work day by his cardiologist.” Id. He completed the rehabilitation program on December 22, 2010. Id. at ¶ 26. In December 2010, Tyler ordered Plaintiff to get a full release back to work because he was still limited to working no later than six at night. Id. at ¶ 27. His cardiologist insisted that he could work no later than six and “Tyler continued to express displeasure with Plaintiffs inability to work as late in the evening as she wanted him to.” Id. Plaintiff alleges that Tyler was “rude, sarcastic, demeaning, controlling and manipulative to the Plaintiff due to his disability and inability to work as many hours as she had demanded.” Id. at ¶ 28. On January 4, 2011, Plaintiff experienced chest pains and was instructed to not return to work on January 10, 2011. Id. at ¶ 29. Plaintiff returned to work on January 10, 2011 and “Tyler continued to harass and demean Plaintiff due to Plaintiffs disability and his need to

rehabilitation, and the restrictions placed upon him regarding the length of his work day by his cardiologist.” Id. He completed the rehabilitation program on December 22, 2010. Id. at ¶ 26. In December 2010, Tyler ordered Plaintiff to get a full release back to work because he was still limited to working no later than six at night. Id. at ¶ 27. His cardiologist insisted that he could work no later than six and “Tyler continued to express displeasure with Plaintiffs inability to work as late in the evening as she wanted him to.” Id. Plaintiff alleges that Tyler was “rude, sarcastic, demeaning, controlling and manipulative to the Plaintiff due to his disability and inability to work as many hours as she had demanded.” Id. at ¶ 28. On January 4, 2011, Plaintiff experienced chest pains and was instructed to not return to work on January 10, 2011. Id. at ¶ 29. Plaintiff returned to work on January 10, 2011 and “Tyler continued to harass and demean Plaintiff due to Plaintiffs disability and his need to leave work by six each night.” Id. at ¶ 30. On January 28, 2011, Plaintiff alleges he was called into Tyler’s office where he was “suspended without cause (purportedly placed on ‘administrative leave’) by Tyler.” Id. at ¶ 31. Plaintiff alleges he was told by Tyler that the suspension “was not disciplinary, nor was Plaintiff being fired or laid off, but was necessary so that Tyler could review the operations of the business office.” Id. Tyler allegedly stated that “she was looking for ‘efficiencies’ and that Plaintiff should look at the suspension ... as a ‘mini-vacation.’ ” Id. Plaintiff was required to “turn in his keys, and was escorted from the building by a burly (physically imposing) staff member ... in the presence of two state troopers.” Id. Plaintiff also alleges he was told to “stay away from the premises and to have no contact with any employees of the Lebanon Public School.” Id. On January 18, 2011, Tyler sent an email regarding Plaintiffs suspension to “all staff of the Lebanon Public Schools.” Id. at ¶ 32.

leave work by six each night.” Id. at ¶ 30. On January 28, 2011, Plaintiff alleges he was called into Tyler’s office where he was “suspended without cause (purportedly placed on ‘administrative leave’) by Tyler.” Id. at ¶ 31. Plaintiff alleges he was told by Tyler that the suspension “was not disciplinary, nor was Plaintiff being fired or laid off, but was necessary so that Tyler could review the operations of the business office.” Id. Tyler allegedly stated that “she was looking for ‘efficiencies’ and that Plaintiff should look at the suspension ... as a ‘mini-vacation.’ ” Id. Plaintiff was required to “turn in his keys, and was escorted from the building by a burly (physically imposing) staff member ... in the presence of two state troopers.” Id. Plaintiff also alleges he was told to “stay away from the premises and to have no contact with any employees of the Lebanon Public School.” Id. On January 18, 2011, Tyler sent an email regarding Plaintiffs suspension to “all staff of the Lebanon Public Schools.” Id. at ¶ 32. Plaintiff alleges that the email led staff members “to believe that the Plaintiff had done something morally, and/or ethically, and /or criminally wrong.” Id. In the email, Tyler wrote This communication is to inform district staff that Mai Leichter, the Director of Business and Technology, has been placed on administrative leave while district operations are reviewed. Mr. Leichter will not be taking any action on behalf of the school district while he is on leave, nor is he to have any contact with district employees. Should you receive communications from Mr. Leichter, please forward that information to my office. Additional information will be forthcoming concerning responsibilities and reporting in Mr. Leichter’s absence for affected employees. In the meantime, please contact me directly should you have any question. [Dkt. #29, Ex.F]. On February 1, 2011, five days after Plaintiff was suspended, Tyler completed her review of the operations of the business office and her search for efficiencies without any input from the Plaintiff. [Dkt. # 29, Amended Compl., ¶ 34]. Tyler decided to divide the Plaintiff’s position into two

Plaintiff alleges that the email led staff members “to believe that the Plaintiff had done something morally, and/or ethically, and /or criminally wrong.” Id. In the email, Tyler wrote This communication is to inform district staff that Mai Leichter, the Director of Business and Technology, has been placed on administrative leave while district operations are reviewed. Mr. Leichter will not be taking any action on behalf of the school district while he is on leave, nor is he to have any contact with district employees. Should you receive communications from Mr. Leichter, please forward that information to my office. Additional information will be forthcoming concerning responsibilities and reporting in Mr. Leichter’s absence for affected employees. In the meantime, please contact me directly should you have any question. [Dkt. #29, Ex.F]. On February 1, 2011, five days after Plaintiff was suspended, Tyler completed her review of the operations of the business office and her search for efficiencies without any input from the Plaintiff. [Dkt. # 29, Amended Compl., ¶ 34]. Tyler decided to divide the Plaintiff’s position into two positions; a business manager position and a technology manager position. Id. On February 16, 2011, the Board hired an outside contractor at an annualized cost of $124,800 per year to perform a part of the technology portion of Plaintiffs position. Id. at ¶ 35. On March 1, 2011, the Board hired a temporary part time business manager to perform the business management portion of Plaintiff’s position. Id. at ¶ 36. On March 15, 2011, the Board contracted an outside accounting firm, Kostin and Ruffkess & Company, LLC (“Kostin”) to conduct a review of the operations of the school business. Id. at ¶ 32. Plaintiff alleges that upon information and belief, Kostin was contracted to “find accounting irregularities, and/or illegal transactions, and/or fraud allegedly perpetrated by the Plaintiff.” Id. at ¶ 37. Plaintiff alleges that Kostin “was directed to audit transaction that by their nature tend to be higher risk such as credit card transactions, payments to individuals, payments to banks.” Id. Plaintiff further alleges that no evidence of accounting irregularities, illegal transaction or fraud was found.

positions; a business manager position and a technology manager position. Id. On February 16, 2011, the Board hired an outside contractor at an annualized cost of $124,800 per year to perform a part of the technology portion of Plaintiffs position. Id. at ¶ 35. On March 1, 2011, the Board hired a temporary part time business manager to perform the business management portion of Plaintiff’s position. Id. at ¶ 36. On March 15, 2011, the Board contracted an outside accounting firm, Kostin and Ruffkess & Company, LLC (“Kostin”) to conduct a review of the operations of the school business. Id. at ¶ 32. Plaintiff alleges that upon information and belief, Kostin was contracted to “find accounting irregularities, and/or illegal transactions, and/or fraud allegedly perpetrated by the Plaintiff.” Id. at ¶ 37. Plaintiff alleges that Kostin “was directed to audit transaction that by their nature tend to be higher risk such as credit card transactions, payments to individuals, payments to banks.” Id. Plaintiff further alleges that no evidence of accounting irregularities, illegal transaction or fraud was found. Id. On April 1, 2011, the Board hired an outside contractor for $25,000 to complete a project closeout and report that was formerly Plaintiff’s responsibility. Id. at ¶39. On April 5, 2011, Tyler formally proposed to the Board that they divide the Plaintiffs position into two positions to redistribute the responsibilities. Id. On April 8, 2011, Plaintiff alleges that Tyler was quoted in an article in the Willimantic Chronicle newspaper stating that the Plaintiffs job “is bigger than one person can handle.” Id. at ¶ 40. On April 26, 2011, the Board followed Tyler’s recommendation and voted to eliminate Plaintiffs position and split the duties into two positions. Id. at ¶ 41. Plaintiff alleges that he was not offered either position, “despite being highly qualified for both positions.” Id. On May 4, 2011, Plaintiff received a letter stating that his position no longer existed and informing him that the Board would honor his contract through June 30, 2011. Id. at ¶ 42.On June 29, 2011, the Board hired a new Director of Technology at an annual salary

Id. On April 1, 2011, the Board hired an outside contractor for $25,000 to complete a project closeout and report that was formerly Plaintiff’s responsibility. Id. at ¶39. On April 5, 2011, Tyler formally proposed to the Board that they divide the Plaintiffs position into two positions to redistribute the responsibilities. Id. On April 8, 2011, Plaintiff alleges that Tyler was quoted in an article in the Willimantic Chronicle newspaper stating that the Plaintiffs job “is bigger than one person can handle.” Id. at ¶ 40. On April 26, 2011, the Board followed Tyler’s recommendation and voted to eliminate Plaintiffs position and split the duties into two positions. Id. at ¶ 41. Plaintiff alleges that he was not offered either position, “despite being highly qualified for both positions.” Id. On May 4, 2011, Plaintiff received a letter stating that his position no longer existed and informing him that the Board would honor his contract through June 30, 2011. Id. at ¶ 42.On June 29, 2011, the Board hired a new Director of Technology at an annual salary of $78,900. Id. at ¶ 43. On September 1, 2011, the Board hired a part time consultant to perform the business manager portion of the Plaintiffs position. Id. at ¶ 44. Plaintiff alleges that the “Board has a practice and/or policy of discriminating against individuals with disabilities. Tyler has a history of discrimination against persons with disabilities. The Board has dismissed five employees with physical impairments since June 1, 2010.” Id. at ¶ 47. Plaintiff further alleges that the Board and Tyler are the policy makers for the Town of Lebanon Public Schools and that Tyler as Superintendent acts as the Chief Executive Officer of the schools. He further alleges that Tyler has authority to hire, fire, discipline and set policy. Id. at ¶ 48. The Plaintiff alleges that he was denied due process in several different ways. He alleges that he had a protected property interest in his employment and was denied due process when he was suspended without a hearing. Id. at p. 22. He also alleges that he was denied due process when the

of $78,900. Id. at ¶ 43. On September 1, 2011, the Board hired a part time consultant to perform the business manager portion of the Plaintiffs position. Id. at ¶ 44. Plaintiff alleges that the “Board has a practice and/or policy of discriminating against individuals with disabilities. Tyler has a history of discrimination against persons with disabilities. The Board has dismissed five employees with physical impairments since June 1, 2010.” Id. at ¶ 47. Plaintiff further alleges that the Board and Tyler are the policy makers for the Town of Lebanon Public Schools and that Tyler as Superintendent acts as the Chief Executive Officer of the schools. He further alleges that Tyler has authority to hire, fire, discipline and set policy. Id. at ¶ 48. The Plaintiff alleges that he was denied due process in several different ways. He alleges that he had a protected property interest in his employment and was denied due process when he was suspended without a hearing. Id. at p. 22. He also alleges that he was denied due process when the Board terminated his employment without a hearing. Id. The Plaintiff also alleges that he had a protected liberty interest in his employment with the Board and that the Defendants “created and disseminated a false and defamatory impression about the Plaintiff in connection with his suspension and/or termination of his employment.” Id. at p. 23. Plaintiff further alleges that the Defendants sent a defamatory email to Board employees and engaged Kostin to perform an audit without providing Plaintiff a hearing to clear his good name. Id. Plaintiff claims that the Defendants breached his contract when they terminated his employment without cause. Id. at p. 25. He also asserts that the Defendants breached the covenant of good faith and fair dealing when he was terminated due to his disability “in violation of public policy.” Id. at p. 26. Legal Standard “ ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Sarmiento v. U.S., 678 F.3d 147 (2d Cir.2012)(quoting Ashcroft v. Iqbal,

Board terminated his employment without a hearing. Id. The Plaintiff also alleges that he had a protected liberty interest in his employment with the Board and that the Defendants “created and disseminated a false and defamatory impression about the Plaintiff in connection with his suspension and/or termination of his employment.” Id. at p. 23. Plaintiff further alleges that the Defendants sent a defamatory email to Board employees and engaged Kostin to perform an audit without providing Plaintiff a hearing to clear his good name. Id. Plaintiff claims that the Defendants breached his contract when they terminated his employment without cause. Id. at p. 25. He also asserts that the Defendants breached the covenant of good faith and fair dealing when he was terminated due to his disability “in violation of public policy.” Id. at p. 26. Legal Standard “ ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Sarmiento v. U.S., 678 F.3d 147 (2d Cir.2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotations omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal citations omitted). In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint.

556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotations omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal citations omitted). In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’ ” Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotations omitted). Analysis i. Breach of Contract Claim Defendants argues there is no breach of the employment agreement because the agreement was “renewable annually and was not renewed when it expired in June 2011.” [Dkt. #32, Mem., p. 20], The Defendants further argue that the “for cause” provision expressly relates to termination not to non-renewals. Plaintiff contends that the renewal provision was mandatory and argues that the

Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’ ” Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotations omitted). Analysis i. Breach of Contract Claim Defendants argues there is no breach of the employment agreement because the agreement was “renewable annually and was not renewed when it expired in June 2011.” [Dkt. #32, Mem., p. 20], The Defendants further argue that the “for cause” provision expressly relates to termination not to non-renewals. Plaintiff contends that the renewal provision was mandatory and argues that the Board had no discretion to decline to renew the agreement. [Dkt. # 37, Mem., p. 25-26]. In response to Plaintiffs argument, Defendants contend that if the agreement was for an indefinite duration, the employment relationship must necessarily be at-will in line with state law precedent which provides that “[a]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). [Dkt. # 32, Mem., p. 20]. Defendants also suggest that the contract cannot be interpreted to renew automatically because the Board had no power to execute a contract for indefinite duration pursuant to the reasoning of Solomon v. Hall-Brooke Found., Inc., 30 Conn.App. 129, 619 A.2d 863 (1993). [Dkt. #42, Mem., p. 8]. Lastly, Defendants argue that they had cause to terminate the employment relationship based on the elimination of Plaintiffs position. [Dkt. # 32, Mem., p. 20-21]. “Although ordinarily the question of contract interpretation, being a question of the parties’

Board had no discretion to decline to renew the agreement. [Dkt. # 37, Mem., p. 25-26]. In response to Plaintiffs argument, Defendants contend that if the agreement was for an indefinite duration, the employment relationship must necessarily be at-will in line with state law precedent which provides that “[a]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). [Dkt. # 32, Mem., p. 20]. Defendants also suggest that the contract cannot be interpreted to renew automatically because the Board had no power to execute a contract for indefinite duration pursuant to the reasoning of Solomon v. Hall-Brooke Found., Inc., 30 Conn.App. 129, 619 A.2d 863 (1993). [Dkt. #42, Mem., p. 8]. Lastly, Defendants argue that they had cause to terminate the employment relationship based on the elimination of Plaintiffs position. [Dkt. # 32, Mem., p. 20-21]. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact ... [w]here there is definitive contract language, the determination of what the parties intended by their contractual communications is a question of law.... subject to plenary review by this court.” Schwartz v. Family Dental Group, P.C., 106 Conn.App. 765, 771, 943 A.2d 1122 (2008) (internal quotation marks and citation omitted). “In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together .... The contract must be construed to give effect to the intent of the contracting parties.... This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained .... [I]ntent ... is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Phillips v. Phillips, 101 Conn.App. 65,

intent, is a question of fact ... [w]here there is definitive contract language, the determination of what the parties intended by their contractual communications is a question of law.... subject to plenary review by this court.” Schwartz v. Family Dental Group, P.C., 106 Conn.App. 765, 771, 943 A.2d 1122 (2008) (internal quotation marks and citation omitted). “In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together .... The contract must be construed to give effect to the intent of the contracting parties.... This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained .... [I]ntent ... is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Phillips v. Phillips, 101 Conn.App. 65, 74, 922 A.2d 1100 (2007) (internal quotation marks and citation omitted). “[Where] ... there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. When the language is clear and unambiguous, however, the contract is to be given effect according to its terms.... In such a case, no room exists for construction” Schwartz, 106 Conn.App. at 771, 943 A.2d 1122 (internal quotation marks and citation omitted). “When there is ambiguity, [the court] must construe contractual terms against the drafter.” Cameron v. Avonridge, Inc., 3 Conn.App. 230, 233, 486 A.2d 661 (1985) (Internal quotation marks and citation omitted.). In the present case, this Court finds that the renewal provision of the employment agreement unambiguously provides for automatic renewal of the agreement. The language of the renewal provision provides that the “contract shall be renewed annually.” [Dkt. # 29, Ex. E, Second Employment Agreement, p. 1] (emphasis added). The use of the term “shall” instead of “may” indicates that renewal was non-discretionary. The Connecticut

74, 922 A.2d 1100 (2007) (internal quotation marks and citation omitted). “[Where] ... there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. When the language is clear and unambiguous, however, the contract is to be given effect according to its terms.... In such a case, no room exists for construction” Schwartz, 106 Conn.App. at 771, 943 A.2d 1122 (internal quotation marks and citation omitted). “When there is ambiguity, [the court] must construe contractual terms against the drafter.” Cameron v. Avonridge, Inc., 3 Conn.App. 230, 233, 486 A.2d 661 (1985) (Internal quotation marks and citation omitted.). In the present case, this Court finds that the renewal provision of the employment agreement unambiguously provides for automatic renewal of the agreement. The language of the renewal provision provides that the “contract shall be renewed annually.” [Dkt. # 29, Ex. E, Second Employment Agreement, p. 1] (emphasis added). The use of the term “shall” instead of “may” indicates that renewal was non-discretionary. The Connecticut Supreme Court has recognized that the “use of the word ‘shall’ denotes that [a] directive in the contract ... was mandatory.” A. Dubreuil and Sons, Inc. v. Town of Lisbon, 215 Conn. 604, 610-11, 577 A.2d 709 (1990). The Connecticut Supreme Court explained that the “word ‘may,’ unless the context in which it is employed requires otherwise, is not normally used as a word of command ... The term ‘may’ generally imports permissive conduct and the use of discretion.” Id.; see also Indymac Mortgage Holdings, Inc. v. Reyad, 167 F.Supp.2d 222, 245 (D.Conn.2001) (noting that the “word ‘shall’ is a mandatory term”); Black’s Law Dictionary (9th Ed.)(Defining shall as “has a duty; more broadly, is required to”). When reading the renewal provision in conjunction with the termination provision, a fair and reasonable construction of the written words indicates that the agreement renews automatically on an annual basis and that the only means available to the Board to unilaterally end the agreement is termination for cause. The Defendants’ arguments that there was no breach because the

Supreme Court has recognized that the “use of the word ‘shall’ denotes that [a] directive in the contract ... was mandatory.” A. Dubreuil and Sons, Inc. v. Town of Lisbon, 215 Conn. 604, 610-11, 577 A.2d 709 (1990). The Connecticut Supreme Court explained that the “word ‘may,’ unless the context in which it is employed requires otherwise, is not normally used as a word of command ... The term ‘may’ generally imports permissive conduct and the use of discretion.” Id.; see also Indymac Mortgage Holdings, Inc. v. Reyad, 167 F.Supp.2d 222, 245 (D.Conn.2001) (noting that the “word ‘shall’ is a mandatory term”); Black’s Law Dictionary (9th Ed.)(Defining shall as “has a duty; more broadly, is required to”). When reading the renewal provision in conjunction with the termination provision, a fair and reasonable construction of the written words indicates that the agreement renews automatically on an annual basis and that the only means available to the Board to unilaterally end the agreement is termination for cause. The Defendants’ arguments that there was no breach because the Board declined to renew the agreement are therefore without merit in light of the clear meaning of the terms of the agreement. Defendant next argues that if the agreement automatically renews it is a contract for an indefinite term and therefore creates an at-will employment relationship terminable for any reason. “In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary.” Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). “As a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). “Parties must specifically contract for a right to be terminated only for cause.” Cruz v. Visual Perceptions, LLC, 136 Conn.App. 330, 338 (2012). Therefore, “pursuant to traditional contract principles, however, the de fault rule of employment at-will can be modified by the agreement of the parties.” Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn.

Board declined to renew the agreement are therefore without merit in light of the clear meaning of the terms of the agreement. Defendant next argues that if the agreement automatically renews it is a contract for an indefinite term and therefore creates an at-will employment relationship terminable for any reason. “In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary.” Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). “As a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). “Parties must specifically contract for a right to be terminated only for cause.” Cruz v. Visual Perceptions, LLC, 136 Conn.App. 330, 338 (2012). Therefore, “pursuant to traditional contract principles, however, the de fault rule of employment at-will can be modified by the agreement of the parties.” Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995). Here, Defendants’ argument is premised on the default rule that contracts for indefinite employment are terminable at will. However, it is axiomatic that parties can contract out of the default rule and modify the agreement to provide a right to be terminated only for cause. Here, the clear terms of the agreement indicate that the parties have done so as they have expressly contracted for a right to termination only for cause. As the parties have clearly contracted out of the default rule, this Court’s interpretation that the agreement is for an indefinite period of time terminable only for cause is clearly not at odds with either the contractual language or legal precedent as Defendants contend. Defendants next suggest that the Board did not have any authority to execute a contract of indefinite duration relying on the rationale of Solomon v. Hall-Brooke Found., Inc., 30 Conn.App. 129, 619 A.2d 863 (1993). In Solomon, a donor who created a charitable foundation brought an action to rescind her gift and for breach

1, 15, 662 A.2d 89 (1995). Here, Defendants’ argument is premised on the default rule that contracts for indefinite employment are terminable at will. However, it is axiomatic that parties can contract out of the default rule and modify the agreement to provide a right to be terminated only for cause. Here, the clear terms of the agreement indicate that the parties have done so as they have expressly contracted for a right to termination only for cause. As the parties have clearly contracted out of the default rule, this Court’s interpretation that the agreement is for an indefinite period of time terminable only for cause is clearly not at odds with either the contractual language or legal precedent as Defendants contend. Defendants next suggest that the Board did not have any authority to execute a contract of indefinite duration relying on the rationale of Solomon v. Hall-Brooke Found., Inc., 30 Conn.App. 129, 619 A.2d 863 (1993). In Solomon, a donor who created a charitable foundation brought an action to rescind her gift and for breach of contract after the foundation terminated her employment as executive director. The Solomon court concluded that the employment contract which called for continued employment until age 65 or retirement and which permitted the defendant to fire her only if she were adjudicated in a criminal court of competent jurisdiction to be guilty of theft, fraud or embezzlement regarding the defendant’s assets was unenforceable as a matter of public policy. Id. at 135, 619 A.2d 863. The Solomon court based its reasoning on a Connecticut Supreme Court case that held “ ‘[tjhere is some authority for the proposition that directors have no power to hire an employee on a lifetime basis ... Such cases are generally based on the theory that a board of directors, in selecting the management personnel of the corporation, should not be allowed to hamstring future boards in the overall supervision of the enterprise and the implementation of changing corporate policy.’” Id. at 135 n. 5, 619 A.2d 863 (quoting Osborne v. Locke Steel Chain Co., 153 Conn. 527, 537, 218 A.2d

of contract after the foundation terminated her employment as executive director. The Solomon court concluded that the employment contract which called for continued employment until age 65 or retirement and which permitted the defendant to fire her only if she were adjudicated in a criminal court of competent jurisdiction to be guilty of theft, fraud or embezzlement regarding the defendant’s assets was unenforceable as a matter of public policy. Id. at 135, 619 A.2d 863. The Solomon court based its reasoning on a Connecticut Supreme Court case that held “ ‘[tjhere is some authority for the proposition that directors have no power to hire an employee on a lifetime basis ... Such cases are generally based on the theory that a board of directors, in selecting the management personnel of the corporation, should not be allowed to hamstring future boards in the overall supervision of the enterprise and the implementation of changing corporate policy.’” Id. at 135 n. 5, 619 A.2d 863 (quoting Osborne v. Locke Steel Chain Co., 153 Conn. 527, 537, 218 A.2d 526 (1966)). The Defendants argue that the Board of Education has similar management rights as corporate boards in Solomon citing to Conn. Gen.Stat. § 10-220. [Dkt. #42, Mem., p. 9]. The Defendants suggest that the Solomon court’s rationale counsels against interpreting the renewal provision as automatic thereby resulting in lifetime employment. Id. As Plaintiff points out the facts of Solomon are distinguishable. In Solomon, termination was only permissible if the director was adjudicated in a criminal court of competent jurisdiction to be guilty of theft, fraud or embezzlement regarding the foundation’s assets. This restriction on termination was far more narrow and restrictive than a common place restriction on termination for cause. The ability to terminate for cause does not truly render an indefinite employment contract into a contract for guaranteed lifetime employment as was the case in Solomon in which termination was extremely limited. In addition, the Solomon court’s reasoning that the contract violated public policy was predicated on the law of corporations. Although Defendants attempt to draw a parallel between a Board of Education and

526 (1966)). The Defendants argue that the Board of Education has similar management rights as corporate boards in Solomon citing to Conn. Gen.Stat. § 10-220. [Dkt. #42, Mem., p. 9]. The Defendants suggest that the Solomon court’s rationale counsels against interpreting the renewal provision as automatic thereby resulting in lifetime employment. Id. As Plaintiff points out the facts of Solomon are distinguishable. In Solomon, termination was only permissible if the director was adjudicated in a criminal court of competent jurisdiction to be guilty of theft, fraud or embezzlement regarding the foundation’s assets. This restriction on termination was far more narrow and restrictive than a common place restriction on termination for cause. The ability to terminate for cause does not truly render an indefinite employment contract into a contract for guaranteed lifetime employment as was the case in Solomon in which termination was extremely limited. In addition, the Solomon court’s reasoning that the contract violated public policy was predicated on the law of corporations. Although Defendants attempt to draw a parallel between a Board of Education and a corporate board, the Court is not persuaded that such a parallel is appropriate. It is well established and common place for a board of education to employ individuals on a “lifetime basis” through teacher tenure. Further Connecticut courts have held that pursuant to Conn. Gen.Stat. §§ 10-151 and 10-220 “[w]ide discretion is customarily vested in school boards with regard to employment of teachers, and courts should not interfere as long as that discretion is exercised in good faith ... When that discretion is exercised in good faith, the courts should not interfere.” Harhay v. Board of Educ. of the Town of Ellington, 44 Conn.App. 179, 187, 687 A.2d 1313 (1997) (citing Conley v. Board of Educ., 143 Conn. 488, 495, 123 A.2d 747 (1956)). Although the Plaintiff was not a teacher, this Court sees no reason why these provisions don’t similarly vest the board of education with wide discretion with regard to employment of all school personnel. Clearly a board of education, in selecting tenured employees, has the ability to hamstring future boards in

a corporate board, the Court is not persuaded that such a parallel is appropriate. It is well established and common place for a board of education to employ individuals on a “lifetime basis” through teacher tenure. Further Connecticut courts have held that pursuant to Conn. Gen.Stat. §§ 10-151 and 10-220 “[w]ide discretion is customarily vested in school boards with regard to employment of teachers, and courts should not interfere as long as that discretion is exercised in good faith ... When that discretion is exercised in good faith, the courts should not interfere.” Harhay v. Board of Educ. of the Town of Ellington, 44 Conn.App. 179, 187, 687 A.2d 1313 (1997) (citing Conley v. Board of Educ., 143 Conn. 488, 495, 123 A.2d 747 (1956)). Although the Plaintiff was not a teacher, this Court sees no reason why these provisions don’t similarly vest the board of education with wide discretion with regard to employment of all school personnel. Clearly a board of education, in selecting tenured employees, has the ability to hamstring future boards in the overall supervision of the school system unlike the case of a corporate board in Solomon. Consequently, the rationale in Solomon does not counsel against inter preting the contract as automatically renewing terminable only for cause. This conclusion is buttressed by the fact that the “for cause” termination provision did not hamstring future boards, as it gave future boards the authority to exercise reasonable discretion to terminate the Plaintiff. Lastly, Defendants argue there was cause to terminate because the Plaintiffs position was admittedly eliminated. However, Plaintiff has alleged that the elimination of his position was a pretext for termination on the basis of disability and therefore without cause. The allegations in the complaint plausibly state that Tyler was animated by anti-disability animus and that the elimination of his position was merely a pretext to terminate him on the basis of his disability. The Plaintiff has therefore plausibly stated that he was terminated without cause at the motion to dismiss stage. See Gardner v. St. Paul Catholic High School, Inc., No. CV970143514, 2001 WL 1517042, at *3-4

the overall supervision of the school system unlike the case of a corporate board in Solomon. Consequently, the rationale in Solomon does not counsel against inter preting the contract as automatically renewing terminable only for cause. This conclusion is buttressed by the fact that the “for cause” termination provision did not hamstring future boards, as it gave future boards the authority to exercise reasonable discretion to terminate the Plaintiff. Lastly, Defendants argue there was cause to terminate because the Plaintiffs position was admittedly eliminated. However, Plaintiff has alleged that the elimination of his position was a pretext for termination on the basis of disability and therefore without cause. The allegations in the complaint plausibly state that Tyler was animated by anti-disability animus and that the elimination of his position was merely a pretext to terminate him on the basis of his disability. The Plaintiff has therefore plausibly stated that he was terminated without cause at the motion to dismiss stage. See Gardner v. St. Paul Catholic High School, Inc., No. CV970143514, 2001 WL 1517042, at *3-4 (Conn.Super.Ct. Nov. 15, 2001) (holding that there was a question of fact as to whether the defendant school’s decision to terminate teacher’s employment did not constitute good or sufficient cause as it was contrived and not the true reason for eliminating the teacher’s position). The question of whether the elimination of Plaintiffs position was good cause for his termination or a pretext is a question of fact to be determined on either summary judgment or trial. The Court therefore denies Defendants’ motion to dismiss the Plaintiffs breach of contract claim. ii. Due Process Claim The Defendants argue that the Plaintiff has no protectable property interest in his job because he has not alleged that he has a right to be fired without just cause. As discussed above, this Court has found that the employment agreement did not establish an at-will employment relationship but provided only a right to terminate for cause. “In the employment context, a property interest arises only where the state is barred, whether by statute or contract, from terminating (or not renewing) the employment

(Conn.Super.Ct. Nov. 15, 2001) (holding that there was a question of fact as to whether the defendant school’s decision to terminate teacher’s employment did not constitute good or sufficient cause as it was contrived and not the true reason for eliminating the teacher’s position). The question of whether the elimination of Plaintiffs position was good cause for his termination or a pretext is a question of fact to be determined on either summary judgment or trial. The Court therefore denies Defendants’ motion to dismiss the Plaintiffs breach of contract claim. ii. Due Process Claim The Defendants argue that the Plaintiff has no protectable property interest in his job because he has not alleged that he has a right to be fired without just cause. As discussed above, this Court has found that the employment agreement did not establish an at-will employment relationship but provided only a right to terminate for cause. “In the employment context, a property interest arises only where the state is barred, whether by statute or contract, from terminating (or not renewing) the employment relationship without cause.” Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (internal quotation marks and citations omitted) (emphasis in the original). A “property interest in employment may be the subject of a due process claim only if the plaintiff has a legitimate claim of entitlement to it.” Etere v. City of New York, 381 Fed.Appx. 24, 25 (2d Cir.2010) (internal quotation marks and citation omitted). Here, the Plaintiff clearly has a protected property interest because the Board is barred by contract from terminating the employment relationship without cause. The Defendants contend that even if the Plaintiff has a protectable property interest there would be no due process violation because the Defendant afforded the Plaintiff due process to which he did not avail himself. Defendants point out that Plaintiff failed to utilize the procedures established by the Board’s policy regarding resolution of problems or complaints for non-unionized personnel. See [Dkt. # 32, Mem., p. 12-13]. That due process policy provides that an employee who contests an employment action must first discuss the problem or

relationship without cause.” Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (internal quotation marks and citations omitted) (emphasis in the original). A “property interest in employment may be the subject of a due process claim only if the plaintiff has a legitimate claim of entitlement to it.” Etere v. City of New York, 381 Fed.Appx. 24, 25 (2d Cir.2010) (internal quotation marks and citation omitted). Here, the Plaintiff clearly has a protected property interest because the Board is barred by contract from terminating the employment relationship without cause. The Defendants contend that even if the Plaintiff has a protectable property interest there would be no due process violation because the Defendant afforded the Plaintiff due process to which he did not avail himself. Defendants point out that Plaintiff failed to utilize the procedures established by the Board’s policy regarding resolution of problems or complaints for non-unionized personnel. See [Dkt. # 32, Mem., p. 12-13]. That due process policy provides that an employee who contests an employment action must first discuss the problem or complaint with his or her supervisor then if necessary the superintendent. [Dkt. # 32, Mem., p. 18]. Then, if the employee is not satisfied with the disposition of the problem or complaint, the employee may submit a written statement to his supervisor within five days. The supervisor shall render a written decision and reason therefore to the employee and superintendent within five days. If the employee is still not satisfied, the employ ee may submit an appeal to the superintendent within five days of receipt of prior disposition. The superintendent shall render a written decision and reason therefore to the employee within ten days. If the employee is still not satisfied, the employee may submit an appeal to the Board within five days of receipt of prior disposition. Id. As Defendants highlight, “[c]ourts have held that [ ] post-deprivation procedures [such as grievance and arbitration procedures pursuant to a collective bargaining agreement], providing for a hearing to contest a challenged employment decision, are sufficient to satisfy due process.” Harhay v. Town of Ellington Bd. of

complaint with his or her supervisor then if necessary the superintendent. [Dkt. # 32, Mem., p. 18]. Then, if the employee is not satisfied with the disposition of the problem or complaint, the employee may submit a written statement to his supervisor within five days. The supervisor shall render a written decision and reason therefore to the employee and superintendent within five days. If the employee is still not satisfied, the employ ee may submit an appeal to the superintendent within five days of receipt of prior disposition. The superintendent shall render a written decision and reason therefore to the employee within ten days. If the employee is still not satisfied, the employee may submit an appeal to the Board within five days of receipt of prior disposition. Id. As Defendants highlight, “[c]ourts have held that [ ] post-deprivation procedures [such as grievance and arbitration procedures pursuant to a collective bargaining agreement], providing for a hearing to contest a challenged employment decision, are sufficient to satisfy due process.” Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 213 (2d Cir.2003). Plaintiff argues that the policy was not applicable to his situation, that the policy did not provide for a pre-termination hearing which due process requires, and that once he was terminated he was no longer an employee with recourse to the procedures laid out in the policy. Plaintiff also argues that any appeal would be futile. Although it does appear that Plaintiff could have utilized the procedures under the policy to dispute Tyler’s decision to place him on administrative leave but not to dispute his termination once he was no longer an employee, the existence of the policy and the Plaintiffs failure to utilize the procedures are matters that go beyond the allegations in the amended complaint and may not be considered by this Court at the motion to dismiss stage. See Green v. McLaughlin, 480 Fed.Appx. 44, 49 (2d Cir.2012) (“[W]hen matters outside the pleadings are presented in response to a 12(b)(6) motion, a district court must either exclude the additional material and decide the motion on the

Educ., 323 F.3d 206, 213 (2d Cir.2003). Plaintiff argues that the policy was not applicable to his situation, that the policy did not provide for a pre-termination hearing which due process requires, and that once he was terminated he was no longer an employee with recourse to the procedures laid out in the policy. Plaintiff also argues that any appeal would be futile. Although it does appear that Plaintiff could have utilized the procedures under the policy to dispute Tyler’s decision to place him on administrative leave but not to dispute his termination once he was no longer an employee, the existence of the policy and the Plaintiffs failure to utilize the procedures are matters that go beyond the allegations in the amended complaint and may not be considered by this Court at the motion to dismiss stage. See Green v. McLaughlin, 480 Fed.Appx. 44, 49 (2d Cir.2012) (“[W]hen matters outside the pleadings are presented in response to a 12(b)(6) motion, a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material.”) (internal quotation marks and citations omitted). On the basis of the allegations of the amended complaint, the Plaintiff has plausibly stated that he has a protectable property interest in his continued employment and that due process was violated when he was denied a hearing in connection with either his suspension or termination. The parties will have the opportunity to raise the issue of whether these procedures were sufficient to satisfy due process and whether due process was violated when Plaintiff failed to pursue these procedures on summary judgment or trial. The Court therefore denies Defendants’ motion to dismiss Plaintiffs due process claim. iii. Stigma-Plus Claim Plaintiff argues that he has plausibly pled a stigma-plus due process claim on the basis of Tyler’s allegedly defaming email, his removal from the Board’s property by a staff member in the presence of state troopers, the engagement by the Board of auditors, and Tyler’s recommendation to the

complaint alone or convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material.”) (internal quotation marks and citations omitted). On the basis of the allegations of the amended complaint, the Plaintiff has plausibly stated that he has a protectable property interest in his continued employment and that due process was violated when he was denied a hearing in connection with either his suspension or termination. The parties will have the opportunity to raise the issue of whether these procedures were sufficient to satisfy due process and whether due process was violated when Plaintiff failed to pursue these procedures on summary judgment or trial. The Court therefore denies Defendants’ motion to dismiss Plaintiffs due process claim. iii. Stigma-Plus Claim Plaintiff argues that he has plausibly pled a stigma-plus due process claim on the basis of Tyler’s allegedly defaming email, his removal from the Board’s property by a staff member in the presence of state troopers, the engagement by the Board of auditors, and Tyler’s recommendation to the Board to eliminate the Plaintiffs position to create two new positions. It is well established that a “person’s interest in his or her good reputation alone, apart from a more tangible interest, is not a liberty or property interest sufficient to invoke the procedural protections of the Due Process Clause or create a cause of action under § 1983.” Patterson v. City of Utica, 370 F.3d 322, 329-30 (2d Cir.2004). However, “Loss of one’s reputation can, however, invoke the protections of the Due Process Clause if that loss is coupled with the deprivation of a more tangible interest.” Id. at 330. “ ‘In an action based on a termination from government employment, a plaintiff must satisfy three elements in order to demonstrate a deprivation of the stigma component of a stigma-plus claim.’ ” Holmes v. Town of East Lyme, 866 F.Supp.2d 108, 125 (D.Conn.2012) (quoting Segal v. City of New York, 459 F.3d 207, 212 (2d Cir.2006)). “First, the plaintiff must ... show that the government made stigmatizing statements about [him] — statements that call into

Board to eliminate the Plaintiffs position to create two new positions. It is well established that a “person’s interest in his or her good reputation alone, apart from a more tangible interest, is not a liberty or property interest sufficient to invoke the procedural protections of the Due Process Clause or create a cause of action under § 1983.” Patterson v. City of Utica, 370 F.3d 322, 329-30 (2d Cir.2004). However, “Loss of one’s reputation can, however, invoke the protections of the Due Process Clause if that loss is coupled with the deprivation of a more tangible interest.” Id. at 330. “ ‘In an action based on a termination from government employment, a plaintiff must satisfy three elements in order to demonstrate a deprivation of the stigma component of a stigma-plus claim.’ ” Holmes v. Town of East Lyme, 866 F.Supp.2d 108, 125 (D.Conn.2012) (quoting Segal v. City of New York, 459 F.3d 207, 212 (2d Cir.2006)). “First, the plaintiff must ... show that the government made stigmatizing statements about [him] — statements that call into question [the] plaintiffs good name, reputation, honor, or integrity. We have also said that statements that denigrate the employee’s competence as a professional and impugn the employee’s professional reputation in such a fashion as to effectively put a significant roadblock in that employee’s continued ability to practice his or her profession will satisfy the stigma requirement. Second, a plaintiff must prove these stigmatizing statements were made public. Third, the plaintiff must show that the stigmatizing statements were made concurrently with, or in close temporal relationship to, the plaintiffs dismissal from government employment.” Id. (internal quotation marks and citations omitted). “A plaintiff generally is required only to raise the falsity of these stigmatizing statements as an issue, not prove they are false.” Patterson, 370 F.3d at 330. As Defendants argue, the Plaintiff fails to plausibly allege that the Defendants made stigmatizing statements about him which called into question his good name, reputation, honor, or integrity as no accusations were leveled against him and he was not terminated until the district determined and announced that his job was

question [the] plaintiffs good name, reputation, honor, or integrity. We have also said that statements that denigrate the employee’s competence as a professional and impugn the employee’s professional reputation in such a fashion as to effectively put a significant roadblock in that employee’s continued ability to practice his or her profession will satisfy the stigma requirement. Second, a plaintiff must prove these stigmatizing statements were made public. Third, the plaintiff must show that the stigmatizing statements were made concurrently with, or in close temporal relationship to, the plaintiffs dismissal from government employment.” Id. (internal quotation marks and citations omitted). “A plaintiff generally is required only to raise the falsity of these stigmatizing statements as an issue, not prove they are false.” Patterson, 370 F.3d at 330. As Defendants argue, the Plaintiff fails to plausibly allege that the Defendants made stigmatizing statements about him which called into question his good name, reputation, honor, or integrity as no accusations were leveled against him and he was not terminated until the district determined and announced that his job was too demanding to be performed well by a single person. The only statements to which the Plaintiff points are Tyler’s email informing staff that the Plaintiff was placed on administrative leave while district operations were reviewed and instructing staff to refrain from communicating with the Plaintiff while he was on leave. These statements are not the type of false reputation-tarnishing statements sufficient to support a stigma-plus due process claim. The fact that an innocuous statement may be lead to unwarranted speculation does not make the statement stigmatizing. That is particularly true where, as here, any potential stigma was dissolved by a later statement in close proximity to the statement in question. “Courts have consistently held that statements announcing personnel decisions, even when leaked to the press, and even when a reader might infer something unfavorable about the employee, are not actionable.” Wiese v. Kelley, No. 08-cv-6348, 2009 WL 2902513, at *4 (S.D.N.Y. Sept. 10, 2009) (collecting authority). In addition, courts have held that “true public statements that a party is under investigation” are not stigmatizing.

too demanding to be performed well by a single person. The only statements to which the Plaintiff points are Tyler’s email informing staff that the Plaintiff was placed on administrative leave while district operations were reviewed and instructing staff to refrain from communicating with the Plaintiff while he was on leave. These statements are not the type of false reputation-tarnishing statements sufficient to support a stigma-plus due process claim. The fact that an innocuous statement may be lead to unwarranted speculation does not make the statement stigmatizing. That is particularly true where, as here, any potential stigma was dissolved by a later statement in close proximity to the statement in question. “Courts have consistently held that statements announcing personnel decisions, even when leaked to the press, and even when a reader might infer something unfavorable about the employee, are not actionable.” Wiese v. Kelley, No. 08-cv-6348, 2009 WL 2902513, at *4 (S.D.N.Y. Sept. 10, 2009) (collecting authority). In addition, courts have held that “true public statements that a party is under investigation” are not stigmatizing. Id. at *5 (collecting authority). Moreover, the Plaintiff has not plausibly raised the falsity of these statements as; indeed the Plaintiff was placed on administrative leave to facilitate an independent review and Plaintiff does not contend that a review was conducted. Therefore, Tyler’s statement did not contain any facts capable of being proven false in order to plausibly state an entitlement to relief. Likewise, the Board’s action in suspending then terminating the Plaintiff, escorting the Plaintiff off of Board property, and eliminating his position cannot support a stigma-plus claim for similar reasons. The Second Circuit has explained that where the alleged stigma arises from the employer’s actions and not its statements, a plaintiff has alleged only “the plus without the stigma” and that the plus alone is insufficient to create the stigma. O’Connor v. Pierson, 426 F.3d 187, 195 (2d Cir.2005). In O’Connor, the Second circuit concluded that a public teacher’s suspension by the board of education even if “townsfolk drew negative inferences from his suspension,” was not sufficient to make out a stigma-plus claim. Here,

Id. at *5 (collecting authority). Moreover, the Plaintiff has not plausibly raised the falsity of these statements as; indeed the Plaintiff was placed on administrative leave to facilitate an independent review and Plaintiff does not contend that a review was conducted. Therefore, Tyler’s statement did not contain any facts capable of being proven false in order to plausibly state an entitlement to relief. Likewise, the Board’s action in suspending then terminating the Plaintiff, escorting the Plaintiff off of Board property, and eliminating his position cannot support a stigma-plus claim for similar reasons. The Second Circuit has explained that where the alleged stigma arises from the employer’s actions and not its statements, a plaintiff has alleged only “the plus without the stigma” and that the plus alone is insufficient to create the stigma. O’Connor v. Pierson, 426 F.3d 187, 195 (2d Cir.2005). In O’Connor, the Second circuit concluded that a public teacher’s suspension by the board of education even if “townsfolk drew negative inferences from his suspension,” was not sufficient to make out a stigma-plus claim. Here, Board’s actions towards the Plaintiff are insufficient allegations of plus without stigma. Plaintiff argues in sum that the Board and Tyler’s conduct was tantamount to a subtle public campaign which imposed an actionable stigma in line with the Second Circuit’s decision in Quinn v. Syracuse Model Neigh. Corp., 613 F.2d 438, 447 (2d Cir.1980). In Quinn, the Second Circuit explained that a “subtle campaign designed by city officials to make plaintiff the scapegoat for an episode of municipal misfeasance may impose no less an indelible stigma than a public proclamation announced at high noon from the steps of City Hall.” Id. at 447. The defendant in Quinn “began a publicity campaign designed to coerce the SMNC Board to fire Quinn. A series of articles appeared in the local Syracuse press suggesting that Quinn was responsible for the missing funds.” Id. at 444. However, the facts of Quinn are inapposite to the facts of the present case. The Plaintiff has not alleged that the Board undertook anything resembling the type of publicity campaign accusing the plaintiff of

Board’s actions towards the Plaintiff are insufficient allegations of plus without stigma. Plaintiff argues in sum that the Board and Tyler’s conduct was tantamount to a subtle public campaign which imposed an actionable stigma in line with the Second Circuit’s decision in Quinn v. Syracuse Model Neigh. Corp., 613 F.2d 438, 447 (2d Cir.1980). In Quinn, the Second Circuit explained that a “subtle campaign designed by city officials to make plaintiff the scapegoat for an episode of municipal misfeasance may impose no less an indelible stigma than a public proclamation announced at high noon from the steps of City Hall.” Id. at 447. The defendant in Quinn “began a publicity campaign designed to coerce the SMNC Board to fire Quinn. A series of articles appeared in the local Syracuse press suggesting that Quinn was responsible for the missing funds.” Id. at 444. However, the facts of Quinn are inapposite to the facts of the present case. The Plaintiff has not alleged that the Board undertook anything resembling the type of publicity campaign accusing the plaintiff of criminal activity as was the case in Quinn. See Grunberg v. Board of Educ. For the City School Dist. Of the City of New York, No. cv-00-4124(DGT), 2006 WL 845389, at *8 (E.D.N.Y. Mar. 30, 2006) (noting that in Quinn, the “defendants, through the media, made explicit accusations that the plaintiff engaged in criminal activities.”). In the present case, the Defendants made no statements to anyone, much less the media that the Plaintiff engaged in criminal or unethical conduct. The Plaintiffs allegations do not amount to the type of widespread public smear campaign that was at issue in Quinn needed to make out a stigma-plus claim. The Court therefore grants the Defendants’ motion to dismiss the Plaintiffs stigma-plus due process claim. iv. Monell Claim In Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities cannot be held liable for constitutional torts under 42 U.S.C. § 1983 on a respondeat superior theory but could be liable where execution of a municipality’s policy or

criminal activity as was the case in Quinn. See Grunberg v. Board of Educ. For the City School Dist. Of the City of New York, No. cv-00-4124(DGT), 2006 WL 845389, at *8 (E.D.N.Y. Mar. 30, 2006) (noting that in Quinn, the “defendants, through the media, made explicit accusations that the plaintiff engaged in criminal activities.”). In the present case, the Defendants made no statements to anyone, much less the media that the Plaintiff engaged in criminal or unethical conduct. The Plaintiffs allegations do not amount to the type of widespread public smear campaign that was at issue in Quinn needed to make out a stigma-plus claim. The Court therefore grants the Defendants’ motion to dismiss the Plaintiffs stigma-plus due process claim. iv. Monell Claim In Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities cannot be held liable for constitutional torts under 42 U.S.C. § 1983 on a respondeat superior theory but could be liable where execution of a municipality’s policy or custom inflicts the injury. Because the Plaintiff has consented to withdrawing his equal protection claim and the Court has dismissed the Plaintiffs stigma-plus claim, the sole remaining Section 1983 claim is the Plain tiffs claim that he was denied due process when he was suspended and terminated without notice or hearing. The complaint is entirely devoid of any allegations that the Board had a custom, policy, or practice of terminating employees without providing pre-termination notice or a hearing. Plaintiff only alleges that the Board has a practice and policy of discriminating against individuals with disabilities. As Plaintiff fails to allege any policy or custom that resulted in his due process injury, he has failed to plausibly state a claim for municipal liability under Monell to maintain his Section 1983 claim against the Board and against Tyler in her official capacity. The Court therefore dismisses Plaintiffs due process claim against the Board and Tyler in her official capacity. The claim shall remain extant against Tyler in her individual capacity. v. Qualified Immunity Defendants argue that Tyler is entitled

custom inflicts the injury. Because the Plaintiff has consented to withdrawing his equal protection claim and the Court has dismissed the Plaintiffs stigma-plus claim, the sole remaining Section 1983 claim is the Plain tiffs claim that he was denied due process when he was suspended and terminated without notice or hearing. The complaint is entirely devoid of any allegations that the Board had a custom, policy, or practice of terminating employees without providing pre-termination notice or a hearing. Plaintiff only alleges that the Board has a practice and policy of discriminating against individuals with disabilities. As Plaintiff fails to allege any policy or custom that resulted in his due process injury, he has failed to plausibly state a claim for municipal liability under Monell to maintain his Section 1983 claim against the Board and against Tyler in her official capacity. The Court therefore dismisses Plaintiffs due process claim against the Board and Tyler in her official capacity. The claim shall remain extant against Tyler in her individual capacity. v. Qualified Immunity Defendants argue that Tyler is entitled to the protections of qualified immunity on Plaintiffs Section 1983 claims. When reviewing a claim of qualified immunity, a court must consider “whether the facts that the plaintiff has alleged (See Fed. Rules Civ. Porc. 12(b)(b)(6), (c)) or shown (see Rule 50, 56) make out a violation of a constitutional [or statutory] right,” and “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Although previously the Supreme Court prescribed a mandatory two-step analysis, considering first the constitutional violation prong and then the clearly established prong, the Court has since recognized that this rigid procedure “sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case,” as “[t]here are cases in which it is plain that a constitutional right is not established but far from obvious whether in fact there is a constitutional right.” Pearson, 555 U.S. at 236-37, 129 S.Ct. 808. Thus, the Supreme

to the protections of qualified immunity on Plaintiffs Section 1983 claims. When reviewing a claim of qualified immunity, a court must consider “whether the facts that the plaintiff has alleged (See Fed. Rules Civ. Porc. 12(b)(b)(6), (c)) or shown (see Rule 50, 56) make out a violation of a constitutional [or statutory] right,” and “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Although previously the Supreme Court prescribed a mandatory two-step analysis, considering first the constitutional violation prong and then the clearly established prong, the Court has since recognized that this rigid procedure “sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case,” as “[t]here are cases in which it is plain that a constitutional right is not established but far from obvious whether in fact there is a constitutional right.” Pearson, 555 U.S. at 236-37, 129 S.Ct. 808. Thus, the Supreme Court has provided district courts with the discretion to decide the order in which the two prongs of the qualified immunity analysis are applied. Id. at 243, 129 S.Ct. 808. In providing the lower courts with the discretion to determine the order of qualified immunity analysis to be applied to a given case, the Supreme Court explicitly acknowledged that “there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question of whether the relevant facts make out a constitutional question at all.” Id. at 239, 129 S.Ct. 808. Qualified immunity “protects government officials from liability where the officials’ conduct was not in violation of a ‘clearly established’ constitutional right.” Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir.2012). “If the conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the [official] to believe that his conduct did not violate such a right, then the [official] is protected

Court has provided district courts with the discretion to decide the order in which the two prongs of the qualified immunity analysis are applied. Id. at 243, 129 S.Ct. 808. In providing the lower courts with the discretion to determine the order of qualified immunity analysis to be applied to a given case, the Supreme Court explicitly acknowledged that “there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question of whether the relevant facts make out a constitutional question at all.” Id. at 239, 129 S.Ct. 808. Qualified immunity “protects government officials from liability where the officials’ conduct was not in violation of a ‘clearly established’ constitutional right.” Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir.2012). “If the conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the [official] to believe that his conduct did not violate such a right, then the [official] is protected by qualified immunity.” Id. (quoting Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir.2011)). “Qualified immunity thus shields government officials from liability when they make ‘reasonable mistakes’ about the legality of their actions, and ‘applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal citations omitted) (quoting Pearson, 555 U.S. at 231, 129 S.Ct. 808). As the Court has dismissed Plaintiffs stigma-plus claim and the Plaintiff has withdrawn his equal protection claim, the Court will only consider whether qualified immunity applies with respect to Plaintiffs remaining Section 1983 due process claim. Defendants argue that Tyler is entitled to qualified immunity because the Plaintiffs alleged property interest in his employment was not clearly established and because Tyler’s interpretation of the employment agreement was objectively reasonable relying on the Second Circuit’s rationale in Taravella and Coollick v. Hughes. It is clearly established that a protectable property interest arises “ ‘where the state is barred, whether by statute or contract,

by qualified immunity.” Id. (quoting Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir.2011)). “Qualified immunity thus shields government officials from liability when they make ‘reasonable mistakes’ about the legality of their actions, and ‘applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal citations omitted) (quoting Pearson, 555 U.S. at 231, 129 S.Ct. 808). As the Court has dismissed Plaintiffs stigma-plus claim and the Plaintiff has withdrawn his equal protection claim, the Court will only consider whether qualified immunity applies with respect to Plaintiffs remaining Section 1983 due process claim. Defendants argue that Tyler is entitled to qualified immunity because the Plaintiffs alleged property interest in his employment was not clearly established and because Tyler’s interpretation of the employment agreement was objectively reasonable relying on the Second Circuit’s rationale in Taravella and Coollick v. Hughes. It is clearly established that a protectable property interest arises “ ‘where the state is barred, whether by statute or contract, from terminating (or not renewing) the employment relationship without cause.’” Taravella, 599 F.3d at 134 (quoting S & D Maintenance Co. v. Goldin, 844 F.2d 962, 967 (2d Cir.1988)). “It is also clear that the alleged property interest is constitutionally protected. [T]he state-law property interest of gov- eminent employees who may only be discharged for cause ... is a constitutionally protected property interest for purposes of the Fourteenth Amendment ... As such, [t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. (internal quotation marks and citations omitted). In Taravella, the Second Circuit concluded that an employer who terminated an employee without affording a pre-termination hearing was protected by qualified immunity because the employment agreement was ambiguous as a matter of law and the employer did not know about an alleged oral promise to provide union-like benefits including a pre-termination hearing. Id. at 135. Despite Defendants’ contrary contention, the employment agreement at issue

from terminating (or not renewing) the employment relationship without cause.’” Taravella, 599 F.3d at 134 (quoting S & D Maintenance Co. v. Goldin, 844 F.2d 962, 967 (2d Cir.1988)). “It is also clear that the alleged property interest is constitutionally protected. [T]he state-law property interest of gov- eminent employees who may only be discharged for cause ... is a constitutionally protected property interest for purposes of the Fourteenth Amendment ... As such, [t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. (internal quotation marks and citations omitted). In Taravella, the Second Circuit concluded that an employer who terminated an employee without affording a pre-termination hearing was protected by qualified immunity because the employment agreement was ambiguous as a matter of law and the employer did not know about an alleged oral promise to provide union-like benefits including a pre-termination hearing. Id. at 135. Despite Defendants’ contrary contention, the employment agreement at issue in the present case is not ambiguous but clearly provides that Plaintiff could not be terminated without cause and therefore it created a property interest protected by due process. Because the agreement was clear and unambiguous, Tyler’s action could not be objectively reasonable as a matter of law as was the case in Taravella. In Coollick, the Second Circuit concluded that a superintendent was entitled to qualified immunity in connection with the elimination of a guidance counselor’s position. Coollick v. Hughes, 699 F.3d 211 (2d Cir.2012). The Second Circuit concluded that on summary judgment the superintendent’s actions were not objectively unreasonable because it was undisputed that the guidance counselor utilized grievance procedures provided for in a collective bargaining agreement, was provided with notice and a hearing, received a favorable decision restoring her status and awarding backpay and benefits. Id. at 220. The Second Circuit explained although the district court identified imperfections in the notice, the notice “conveyed to Coollick enough information to file a grievance. The Notice also gave Coollick an opportunity to respond by inviting

in the present case is not ambiguous but clearly provides that Plaintiff could not be terminated without cause and therefore it created a property interest protected by due process. Because the agreement was clear and unambiguous, Tyler’s action could not be objectively reasonable as a matter of law as was the case in Taravella. In Coollick, the Second Circuit concluded that a superintendent was entitled to qualified immunity in connection with the elimination of a guidance counselor’s position. Coollick v. Hughes, 699 F.3d 211 (2d Cir.2012). The Second Circuit concluded that on summary judgment the superintendent’s actions were not objectively unreasonable because it was undisputed that the guidance counselor utilized grievance procedures provided for in a collective bargaining agreement, was provided with notice and a hearing, received a favorable decision restoring her status and awarding backpay and benefits. Id. at 220. The Second Circuit explained although the district court identified imperfections in the notice, the notice “conveyed to Coollick enough information to file a grievance. The Notice also gave Coollick an opportunity to respond by inviting her to submit any questions she may have to human resources.” Id. at 221. The Second Circuit explained that “viewed in the light most favorable to Coollick, Hughes’s actions lie somewhere in the gray area in the spectrum of what satisfies due process given the particular facts of this case. Hughes sent Coollick reasonably clear notice well in advance of any deprivation, which allowed Coollick to avail herself of the collective bargaining agreement’s grievance procedures.” Id. As discussed above, the facts of the Board’s complaint policy for non-unionized personnel and the Plaintiffs failure to utilize those procedures go beyond the allegations of the complaint and will not be considered at the motion to dismiss stage. At the motion to dismiss stage, the Court’s analysis of qualified immunity is limited to the allegations in the complaint which plausibly state that Plaintiff had a protected property interest in his employment and was suspended and then terminated without a hearing. On the basis of those allegations, qualified immunity cannot be established at the motion to dismiss stage. Instead,

her to submit any questions she may have to human resources.” Id. at 221. The Second Circuit explained that “viewed in the light most favorable to Coollick, Hughes’s actions lie somewhere in the gray area in the spectrum of what satisfies due process given the particular facts of this case. Hughes sent Coollick reasonably clear notice well in advance of any deprivation, which allowed Coollick to avail herself of the collective bargaining agreement’s grievance procedures.” Id. As discussed above, the facts of the Board’s complaint policy for non-unionized personnel and the Plaintiffs failure to utilize those procedures go beyond the allegations of the complaint and will not be considered at the motion to dismiss stage. At the motion to dismiss stage, the Court’s analysis of qualified immunity is limited to the allegations in the complaint which plausibly state that Plaintiff had a protected property interest in his employment and was suspended and then terminated without a hearing. On the basis of those allegations, qualified immunity cannot be established at the motion to dismiss stage. Instead, this is an issue which is best left to be raised in a motion for summary judgment. Whether Tyler’s actions were objectively reasonable in light of the Board’s complaint policy for non-unionized personnel is likewise a question best reserved for summary judgment. At this stage, the Court declines to find that qualified immunity protects Tyler. vi. Covenant of Good Faith and Fair Dealing Defendants argue that CFEPA is the exclusive remedy for Plaintiffs claim that Defendants breached the covenant of good faith and fair dealing when he was termi nated due to his disability in violation of public policy. “Superior court cases and district court cases have ... held that neither a wrongful discharge nor a breach of implied covenant claim is available where the plaintiff has adequate statutory remedies through which the alleged public policy violations can be enforced.” Hancock v. Stop & Shop Companies, Inc., No. CR9704061S, 1998 WL 951019, at *4 (Conn.Super.Ct. Dec. 29, 1998) (collecting cases). “To date, it does not appear that Connecticut’s appellate courts have fully addressed the issue of whether

this is an issue which is best left to be raised in a motion for summary judgment. Whether Tyler’s actions were objectively reasonable in light of the Board’s complaint policy for non-unionized personnel is likewise a question best reserved for summary judgment. At this stage, the Court declines to find that qualified immunity protects Tyler. vi. Covenant of Good Faith and Fair Dealing Defendants argue that CFEPA is the exclusive remedy for Plaintiffs claim that Defendants breached the covenant of good faith and fair dealing when he was termi nated due to his disability in violation of public policy. “Superior court cases and district court cases have ... held that neither a wrongful discharge nor a breach of implied covenant claim is available where the plaintiff has adequate statutory remedies through which the alleged public policy violations can be enforced.” Hancock v. Stop & Shop Companies, Inc., No. CR9704061S, 1998 WL 951019, at *4 (Conn.Super.Ct. Dec. 29, 1998) (collecting cases). “To date, it does not appear that Connecticut’s appellate courts have fully addressed the issue of whether CFEPA provides [an] exclusive remedy” and “preempts common-law causes of action,” Hall-Duncan v. Bruce Museum, Inc., No. FSTCV106004998, 2011 WL 590652, at *3 (Conn.Super.Ct., Jan. 24, 2011) (collecting cases). It appears that superior court judges are split with respect to this issue. Id. (citing cases). As Plaintiff points out those cases that do find that claims for wrongful discharge or breach of implied covenant are precluded where the plaintiff has adequate statutory remedies evolved from cases where there was an at-will employment relationship. The Connecticut Supreme Court has explained that “[although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are enforceable when violative of public policy, the right to discharge at will is subject to the same restriction. We see no reason presently, therefore, to enlarge the circumstances under which

CFEPA provides [an] exclusive remedy” and “preempts common-law causes of action,” Hall-Duncan v. Bruce Museum, Inc., No. FSTCV106004998, 2011 WL 590652, at *3 (Conn.Super.Ct., Jan. 24, 2011) (collecting cases). It appears that superior court judges are split with respect to this issue. Id. (citing cases). As Plaintiff points out those cases that do find that claims for wrongful discharge or breach of implied covenant are precluded where the plaintiff has adequate statutory remedies evolved from cases where there was an at-will employment relationship. The Connecticut Supreme Court has explained that “[although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are enforceable when violative of public policy, the right to discharge at will is subject to the same restriction. We see no reason presently, therefore, to enlarge the circumstances under which an at will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves impropriety ... derived from some important violation of public policy.” Magnan v. Anaconda Indus., Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). Consequently, employees who are terminable at-will can only maintain a claim for breach of the covenant of good faith and fair dealing or wrongful discharge on the basis that their termination was in violation of public policy, unlike an employee who is terminable only for cause. Because the Plaintiffs employment was not terminable at-will, he is not limited to bringing a claim for breach of the covenant of good faith and fair dealing on the basis of a public policy violation. However, Plaintiff has chosen to expressly predicate his claim on the basis of such a public policy violation. The Connecticut Supreme Court has explained in the context of a claim for wrongful discharge that “[a] finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a

an at will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves impropriety ... derived from some important violation of public policy.” Magnan v. Anaconda Indus., Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). Consequently, employees who are terminable at-will can only maintain a claim for breach of the covenant of good faith and fair dealing or wrongful discharge on the basis that their termination was in violation of public policy, unlike an employee who is terminable only for cause. Because the Plaintiffs employment was not terminable at-will, he is not limited to bringing a claim for breach of the covenant of good faith and fair dealing on the basis of a public policy violation. However, Plaintiff has chosen to expressly predicate his claim on the basis of such a public policy violation. The Connecticut Supreme Court has explained in the context of a claim for wrongful discharge that “[a] finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000). The Connecticut Supreme Court concluded that where there existed a statutory remedy for that particular public policy violation, the claim for wrongful discharge was “precluded by virtue of the existence of [that] statutory remedy.” Id. at 161-62, 745 A.2d 178. Connecticut courts have extended the Supreme Court’s logic in Burnham to preclude claims for breach of the covenant of good faith and fair dealing where there are adequate statutory remedies through which the alleged public policy violations can be enforced. See e.g., Campbell v. Town of Plymouth, 74 Conn.App. 67, 73-76, 811 A.2d 243 (2002) (concluding that Conn. Gen.Stat. §

contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000). The Connecticut Supreme Court concluded that where there existed a statutory remedy for that particular public policy violation, the claim for wrongful discharge was “precluded by virtue of the existence of [that] statutory remedy.” Id. at 161-62, 745 A.2d 178. Connecticut courts have extended the Supreme Court’s logic in Burnham to preclude claims for breach of the covenant of good faith and fair dealing where there are adequate statutory remedies through which the alleged public policy violations can be enforced. See e.g., Campbell v. Town of Plymouth, 74 Conn.App. 67, 73-76, 811 A.2d 243 (2002) (concluding that Conn. Gen.Stat. § 31-51m provides the exclusive remedy and precluded the plaintiff from pleading any alternative, common-law cause of action including breach of covenant of good faith and fair dealing); Powell v. Greenwald Indus., Inc., No. CV095013578, 2010 WL 2383784, at *5 (Conn.Super.Ct. April 29, 2010) (concluding on the basis of the analysis contained in Burnham that CFEPA provided the “exclusive remedy for the plaintiffs claim of a breach of the implied covenant of good faith and fair dealing” as the “plaintiff relies exclusively on the public policy embodied in the CFEPA as the basis for this claim, as such, the CFEPA provides the exclusive relief.”); see also Hall-Duncan, 2011 WL 590652, at *4-5 (striking plaintiffs wrongful discharge claim stemming from alleged age discrimination on the basis that “CFEPA provides the plaintiffs exclusive remedy.”). This Court agrees with the reasoning of these cases. Based on an application of the Connecticut Supreme Court’s analysis and logic in Burnham, the Plaintiffs claim for breach of the covenant of good faith and fair dealing based on violation of public policy embodied

31-51m provides the exclusive remedy and precluded the plaintiff from pleading any alternative, common-law cause of action including breach of covenant of good faith and fair dealing); Powell v. Greenwald Indus., Inc., No. CV095013578, 2010 WL 2383784, at *5 (Conn.Super.Ct. April 29, 2010) (concluding on the basis of the analysis contained in Burnham that CFEPA provided the “exclusive remedy for the plaintiffs claim of a breach of the implied covenant of good faith and fair dealing” as the “plaintiff relies exclusively on the public policy embodied in the CFEPA as the basis for this claim, as such, the CFEPA provides the exclusive relief.”); see also Hall-Duncan, 2011 WL 590652, at *4-5 (striking plaintiffs wrongful discharge claim stemming from alleged age discrimination on the basis that “CFEPA provides the plaintiffs exclusive remedy.”). This Court agrees with the reasoning of these cases. Based on an application of the Connecticut Supreme Court’s analysis and logic in Burnham, the Plaintiffs claim for breach of the covenant of good faith and fair dealing based on violation of public policy embodied in CFEPA must be precluded as Plaintiff has failed to establish that CFEPA does not afford an adequate remedy to address the public policy violation. As the Powell court concluded, because the Plaintiffs implied covenant claim is expressly based on a violation of the public policy embodied in CFEPA, CFEPA provides the exclusive relief. Plaintiff argues that this line of precedent is not applicable to his case because he was not an at-will employee. However, Plaintiff fails to explain why this distinction makes a difference. As discussed above although the Plaintiff was not limited to asserting an implied covenant claim on the basis of a public policy violation as an at-will employee would be, he chose to assert this type of claim. This Court sees no reason why the rationale of these cases would not also apply to his claim where his claim is likewise predicated on the violation of public policy embodied by a statute upon which he asserts a claim and which statute he fails to establish provides an inadequate remedy. Accordingly, the Court

in CFEPA must be precluded as Plaintiff has failed to establish that CFEPA does not afford an adequate remedy to address the public policy violation. As the Powell court concluded, because the Plaintiffs implied covenant claim is expressly based on a violation of the public policy embodied in CFEPA, CFEPA provides the exclusive relief. Plaintiff argues that this line of precedent is not applicable to his case because he was not an at-will employee. However, Plaintiff fails to explain why this distinction makes a difference. As discussed above although the Plaintiff was not limited to asserting an implied covenant claim on the basis of a public policy violation as an at-will employee would be, he chose to assert this type of claim. This Court sees no reason why the rationale of these cases would not also apply to his claim where his claim is likewise predicated on the violation of public policy embodied by a statute upon which he asserts a claim and which statute he fails to establish provides an inadequate remedy. Accordingly, the Court grants Defendants’ motion to dismiss Plaintiffs breach of the covenant of good faith and fair dealing claim. vii. Punitive Damages Defendants argue that Plaintiffs claim for punitive damages against the Board should be dismissed. As the Court has dismissed the Plaintiffs Section 1983 claims against the Board and Tyler in her official capacity, the Court need not address Defendants’ arguments regarding punitive damages under federal law. Defendants argue that under Connecticut state law it is impermissible to award punitive damages against a municipality on public policy grounds. [Dkt. #32, Mem. p. 28]. The Connecticut Appellate court has noted that “[i]n the overwhelming majority of jurisdictions which have considered [whether a municipality is liable for punitive damages], it is now firmly established that exemplary or punitive damages are not recoverable unless expressly authorized by statute or through statutory construction.... In denying punitive or exemplary damages, most courts have reasoned that while the public is benefitted by the exaction of such damages against a malicious, willful or reckless wrongdoer, the benefit does not follow when the public itself is

grants Defendants’ motion to dismiss Plaintiffs breach of the covenant of good faith and fair dealing claim. vii. Punitive Damages Defendants argue that Plaintiffs claim for punitive damages against the Board should be dismissed. As the Court has dismissed the Plaintiffs Section 1983 claims against the Board and Tyler in her official capacity, the Court need not address Defendants’ arguments regarding punitive damages under federal law. Defendants argue that under Connecticut state law it is impermissible to award punitive damages against a municipality on public policy grounds. [Dkt. #32, Mem. p. 28]. The Connecticut Appellate court has noted that “[i]n the overwhelming majority of jurisdictions which have considered [whether a municipality is liable for punitive damages], it is now firmly established that exemplary or punitive damages are not recoverable unless expressly authorized by statute or through statutory construction.... In denying punitive or exemplary damages, most courts have reasoned that while the public is benefitted by the exaction of such damages against a malicious, willful or reckless wrongdoer, the benefit does not follow when the public itself is penalized for the acts of its agents over which it is able to exercise but little direct control.” City of Hartford v. Int’l Ass’n of Firefighters, Local 760, 49 Conn. App. 805, 717 A.2d 258, 266 (1998) (internal quotation marks and citations omitted). The parties have failed to substantively brief whether punitive damages have been authorized by statute or through statutory construction in connection with any of the state law claims at issue. For example, at least one court has found that an award of punitive damages against a municipal entity under CFEPA does not violate public policy. See Jackson v. Hartford Bd. of Educ., No. KNLCV095009854S, 2009 WL 7630238, at *2 (Conn.Super.Ct. July 27, 2009). It is really premature to determine whether punitive damages are available at this stage in the litigation in view of the inchoate nature of the briefing particularly given the fact that summary judgment could further narrow the claims at issue or result in judgment being entered for the Defendants. In view of this, the parties may raise the issue of

penalized for the acts of its agents over which it is able to exercise but little direct control.” City of Hartford v. Int’l Ass’n of Firefighters, Local 760, 49 Conn. App. 805, 717 A.2d 258, 266 (1998) (internal quotation marks and citations omitted). The parties have failed to substantively brief whether punitive damages have been authorized by statute or through statutory construction in connection with any of the state law claims at issue. For example, at least one court has found that an award of punitive damages against a municipal entity under CFEPA does not violate public policy. See Jackson v. Hartford Bd. of Educ., No. KNLCV095009854S, 2009 WL 7630238, at *2 (Conn.Super.Ct. July 27, 2009). It is really premature to determine whether punitive damages are available at this stage in the litigation in view of the inchoate nature of the briefing particularly given the fact that summary judgment could further narrow the claims at issue or result in judgment being entered for the Defendants. In view of this, the parties may raise the issue of the appropriateness of punitive damages after summary judgment. Conclusion Based upon the above reasoning, Defendants’ [Dkt. #31] motion to dismiss is DENIED IN PART and GRANTED IN PART. The Plaintiffs stigma-plus due process, equal protection, implied covenant of good faith and fair dealing claims have been dismissed. In addition, Plaintiffs due process claim against the Board and Defendant Tyler in her official capacity have also been dismissed and Plaintiffs ADA and Section 504 claims against Defendant Tyler are dismissed. IT IS SO ORDERED. . Further factual development as to how this policy worked in practice must be conducted for the Court to determine on summary judgment or at trial whether the procedures afforded under the policy satisfied the requirements of due process irrespective of whether the Plaintiff failed to utilize those procedures or not. . The Court also notes that Connecticut courts are split on the issue of whether punitive damages are even available for CFEPA violations in an appropriate case. See Kariuki v. Health Resources of Rockville, Inc., No. CV116003960S, 2011 WL 6934695, at *2 (Conn.Super.Ct. Dec. 7, 2011).

MEMORANDUM AND ORDER JULIE A. ROBINSON, District Judge. Plaintiff American Civil Liberties Union of Kansas and Western Missouri brought this action pursuant to 42 U.S.C. § 1983 for redress of alleged violations of its members’ constitutional rights by Defendant Sally Praeger’s enforcement of Kansas House Bill 2075, codified as Kan. Stat. Ann. § 40-2,190 (“the Act”). The Act prohibits insurance companies from offering comprehensive health insurance plans that cover abortions, unless the abortion is required to prevent the death of the mother. On June 15, 2012, Plaintiff sought summary judgment (Doc. 57), arguing that the challenged statute violates its members’ rights to privacy and liberty, as protected by the U.S. Constitution’s Due Process Clause. Specifically, Plaintiff argues that the Act’s purpose is improper, that is, that the legislature’s predominant purpose in passing the Act was simply to impede access to abortion care, not to serve legitimate state interests. Although Plaintiff initially argued that the challenged statute violates the Constitution’s equal protection clause as well, Plaintiff did not pursue this claim on summary judgment. Plaintiff also has not sought summary judgment on its claim that the statute has the unconstitutional effect of imposing a substantial obstacle to obtaining abortions. On July 6, 2012, Defendant filed a cross motion for summary judgment (Doc. 65), arguing that the Act does not have the predominant purpose of imposing a substantial obstacle to obtaining abortions and that the Act does not have an unconstitutional effect. Both motions are currently before the Court and are fully briefed, and the Court is prepared to rule. As described more fully below, the Court grants in part and denies in part Defendant’s cross motion for summary judgment and denies Plaintiffs cross motion for summary judgment. 1. Legal Standards Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. “There is no genuine issue of material fact unless the evidence,

summary judgment on its claim that the statute has the unconstitutional effect of imposing a substantial obstacle to obtaining abortions. On July 6, 2012, Defendant filed a cross motion for summary judgment (Doc. 65), arguing that the Act does not have the predominant purpose of imposing a substantial obstacle to obtaining abortions and that the Act does not have an unconstitutional effect. Both motions are currently before the Court and are fully briefed, and the Court is prepared to rule. As described more fully below, the Court grants in part and denies in part Defendant’s cross motion for summary judgment and denies Plaintiffs cross motion for summary judgment. 1. Legal Standards Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.” A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” An issue of fact is “genuine” if “ ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” The nonmoving party

construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.” A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” An issue of fact is “genuine” if “ ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation. “Where, as here, the parties file cross motions for summary judgment, [the Court is] entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.” Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive

may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation. “Where, as here, the parties file cross motions for summary judgment, [the Court is] entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.” Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” II. Uncontroverted Facts Many of the relevant facts in this case are not controverted for purposes of summary judgment. In 2011, the Kansas Legislature passed a series of laws addressing abortion coverage, including section eight of the Act, which prohibits insurance companies from covering “elective” abortions in their comprehensive health insurance policies delivered, issued for delivery, amended, or renewed on or after July 1, 2011. The Act categorizes as elective any abortion for any reason other than to prevent the death of the mother upon whom the abortion is performed. Thus, the Act prohibits coverage for abortions that are necessary to prevent severe and permanent harm to the woman’s health, such as organ failure, disability, and loss of fertility, to the extent that such effects would not lead to the death of the mother. There are

determination of every action.” In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” II. Uncontroverted Facts Many of the relevant facts in this case are not controverted for purposes of summary judgment. In 2011, the Kansas Legislature passed a series of laws addressing abortion coverage, including section eight of the Act, which prohibits insurance companies from covering “elective” abortions in their comprehensive health insurance policies delivered, issued for delivery, amended, or renewed on or after July 1, 2011. The Act categorizes as elective any abortion for any reason other than to prevent the death of the mother upon whom the abortion is performed. Thus, the Act prohibits coverage for abortions that are necessary to prevent severe and permanent harm to the woman’s health, such as organ failure, disability, and loss of fertility, to the extent that such effects would not lead to the death of the mother. There are no exceptions for the health of the mother, for a nonviable fetus, or for pregnancies that result from rape or incest. Insurance companies may only provide coverage for these and other elective abortions in a separate rider, which must fully cover the cost of elective abortions per enrollee as determined on an average actuarial basis. Plaintiff ACLU of Kansas and Western Missouri has members who have lost insurance coverage because of the Act, including a member who has insurance through her employer but whose employer has not elected to purchase a rider, and whose insurance company does not offer riders to individual group members. The cost for an abortion in a clinic ranges from $450 to $1675. If the abortion is performed in a hospital — which is often the case in situations where the woman’s health is endangered or there are fetal problems — it can cost upwards of $10,000. Some women lack the finances to pay for an abortion out of pocket, and some are forced to delay an abortion while gathering the necessary funds

no exceptions for the health of the mother, for a nonviable fetus, or for pregnancies that result from rape or incest. Insurance companies may only provide coverage for these and other elective abortions in a separate rider, which must fully cover the cost of elective abortions per enrollee as determined on an average actuarial basis. Plaintiff ACLU of Kansas and Western Missouri has members who have lost insurance coverage because of the Act, including a member who has insurance through her employer but whose employer has not elected to purchase a rider, and whose insurance company does not offer riders to individual group members. The cost for an abortion in a clinic ranges from $450 to $1675. If the abortion is performed in a hospital — which is often the case in situations where the woman’s health is endangered or there are fetal problems — it can cost upwards of $10,000. Some women lack the finances to pay for an abortion out of pocket, and some are forced to delay an abortion while gathering the necessary funds to pay for an abortion. As the pregnancy advances, the cost of an abortion increases, and the procedure carries more risks. Prior to the Act’s passage, insurance companies comprising over 70% of the insurance market share in Kansas included abortion coverage in their comprehensive policies. But after the Act’s passage, not all of these insurance companies decided to offer riders to all of their customers. For example, several do not offer riders to individuals on individual plans or to small groups. Further, even if a rider is offered for a group plan, the employer alone elects whether to purchase a rider, not the individual employee, and if an individual employee wanted to purchase an abortion rider after her employer elected not to, she would essentially have to forego the policy offered by her employer and buy an individual policy from an insurance company that offered riders to their individual policy holders. Thus, purchasing the rider will prove difficult for many women. Even if a rider is available, a woman (or employ er) cannot wait until she

to pay for an abortion. As the pregnancy advances, the cost of an abortion increases, and the procedure carries more risks. Prior to the Act’s passage, insurance companies comprising over 70% of the insurance market share in Kansas included abortion coverage in their comprehensive policies. But after the Act’s passage, not all of these insurance companies decided to offer riders to all of their customers. For example, several do not offer riders to individuals on individual plans or to small groups. Further, even if a rider is offered for a group plan, the employer alone elects whether to purchase a rider, not the individual employee, and if an individual employee wanted to purchase an abortion rider after her employer elected not to, she would essentially have to forego the policy offered by her employer and buy an individual policy from an insurance company that offered riders to their individual policy holders. Thus, purchasing the rider will prove difficult for many women. Even if a rider is available, a woman (or employ er) cannot wait until she knows she needs an abortion to buy it. Rather, she must buy the rider prior to becoming pregnant, because companies generally impose a long waiting period between the time the rider was purchased and when it can be used to cover an abortion. The insurance companies do not anticipate that many, if any, riders will be sold, perhaps due to the difficulty in obtaining the riders. The Conference Committee Report Brief for House Bill 2075 states that “proponents” of the bill intended it to ensure that private citizens and businesses do not end up financing other person’s abortions through premium payments and notes that seven states have passed similar legislation, although this is not a statement of legislative intent. At least some insurance companies pool the premiums for abortion riders together with other premiums and other sources of income to pay all claims, including abortion claims. Prior to the Act, if an employer wanted to exclude abortion coverage from its group policy, it could do so. In calendar year 2011, 7851 reported abortions were performed in Kansas.

knows she needs an abortion to buy it. Rather, she must buy the rider prior to becoming pregnant, because companies generally impose a long waiting period between the time the rider was purchased and when it can be used to cover an abortion. The insurance companies do not anticipate that many, if any, riders will be sold, perhaps due to the difficulty in obtaining the riders. The Conference Committee Report Brief for House Bill 2075 states that “proponents” of the bill intended it to ensure that private citizens and businesses do not end up financing other person’s abortions through premium payments and notes that seven states have passed similar legislation, although this is not a statement of legislative intent. At least some insurance companies pool the premiums for abortion riders together with other premiums and other sources of income to pay all claims, including abortion claims. Prior to the Act, if an employer wanted to exclude abortion coverage from its group policy, it could do so. In calendar year 2011, 7851 reported abortions were performed in Kansas. In a similar time span (July 2010 to July 2011), the three major health insurers in Kansas with a combined total of over 70% of the market share had a total of 137 paid claims for abortions (not including treatment for ectopic pregnancy and miscarriage management, and not including claims in self-insured plans). The Act has not resulted in significant changes in health insurance premiums at the individual level. Some insurance companies have not reduced premiums at all as a result of the Act or will not implement changes for several years, and insurance companies that have provided figures report per participant plan cost changes in the range of $.04 per month to $.20 to $.50 per month. These changes are expected to result in decreased aggregate costs in the range of tens of thousands up to the low hundreds of thousands of dollars across all insureds in Kansas. There is no indication that Kansas legislators contacted the major insurance companies that covered abortions in their comprehensive policies prior to the Act’s passage about the Act’s

In a similar time span (July 2010 to July 2011), the three major health insurers in Kansas with a combined total of over 70% of the market share had a total of 137 paid claims for abortions (not including treatment for ectopic pregnancy and miscarriage management, and not including claims in self-insured plans). The Act has not resulted in significant changes in health insurance premiums at the individual level. Some insurance companies have not reduced premiums at all as a result of the Act or will not implement changes for several years, and insurance companies that have provided figures report per participant plan cost changes in the range of $.04 per month to $.20 to $.50 per month. These changes are expected to result in decreased aggregate costs in the range of tens of thousands up to the low hundreds of thousands of dollars across all insureds in Kansas. There is no indication that Kansas legislators contacted the major insurance companies that covered abortions in their comprehensive policies prior to the Act’s passage about the Act’s expected effects on premium prices. The Act has not caused abortion providers to change the amount they charge for performing an abortion, although the out-of-pocket costs for women seeking abortions no longer covered by insurance will be higher. Some women seeking treatment have been turned away because they are unable to pay for an abortion. III. Discussion Plaintiff argues that the Act is unconstitutional because its predominant purpose is to impede access to abortion, not to serve legitimate state interests. Defendant argues in response that the Act does not have the predominant purpose of imposing a substantial obstacle to obtaining abortions but rather that the Act serves several legitimate state interests. Defendant also seeks summary judgment on the question of whether the Act has the effect, not just the purpose, of imposing a substantial obstacle on women seeking an abortion. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court reaffirmed several core holdings from Roe v. Wade, including “a recognition of the right of the woman to choose to have an abortion before viability and to obtain

expected effects on premium prices. The Act has not caused abortion providers to change the amount they charge for performing an abortion, although the out-of-pocket costs for women seeking abortions no longer covered by insurance will be higher. Some women seeking treatment have been turned away because they are unable to pay for an abortion. III. Discussion Plaintiff argues that the Act is unconstitutional because its predominant purpose is to impede access to abortion, not to serve legitimate state interests. Defendant argues in response that the Act does not have the predominant purpose of imposing a substantial obstacle to obtaining abortions but rather that the Act serves several legitimate state interests. Defendant also seeks summary judgment on the question of whether the Act has the effect, not just the purpose, of imposing a substantial obstacle on women seeking an abortion. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court reaffirmed several core holdings from Roe v. Wade, including “a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State,” and “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Casey recognizes the right of a woman to have an abortion before viability, but this is not an absolute right. The state may interfere with that right, provided that the interference is not undue, that is, that it does not create a substantial obstacle to a woman’s decision to exercise her right. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” The Tenth Circuit also recognizes that, “under Casey, a law is invalid

it without undue interference from the State,” and “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Casey recognizes the right of a woman to have an abortion before viability, but this is not an absolute right. The state may interfere with that right, provided that the interference is not undue, that is, that it does not create a substantial obstacle to a woman’s decision to exercise her right. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” The Tenth Circuit also recognizes that, “under Casey, a law is invalid if either its purpose or effect is to place a substantial obstacle in the path of a woman seeking to abort a nonviable fetus.” This creates a two part test, with the first part focused on the law’s purpose and the second part focused on the law’s actual effect. In determining whether a statute’s purpose is proper, the Tenth Circuit has stated that a “[l]egislative purpose to accomplish a constitutionally forbidden result may be found when that purpose was the predominant factor motivating the legislature’s decision. Such a forbidden purpose may be gleaned both from the structure of the legislation and from examination of the process that led to its enactment.” And the absence of a clearly constitutional intent does not allow the Court to intuit an unconstitutional purpose; even facing apparently unconstitutional effects from a law, the Court does “not assume unconstitutional legislative intent.” In the summary judgment context, to avoid a nonsuit on the purpose prong, Plaintiff must produce some evidence suggesting an unlawful motive. The Court address the purpose question first. A. The

if either its purpose or effect is to place a substantial obstacle in the path of a woman seeking to abort a nonviable fetus.” This creates a two part test, with the first part focused on the law’s purpose and the second part focused on the law’s actual effect. In determining whether a statute’s purpose is proper, the Tenth Circuit has stated that a “[l]egislative purpose to accomplish a constitutionally forbidden result may be found when that purpose was the predominant factor motivating the legislature’s decision. Such a forbidden purpose may be gleaned both from the structure of the legislation and from examination of the process that led to its enactment.” And the absence of a clearly constitutional intent does not allow the Court to intuit an unconstitutional purpose; even facing apparently unconstitutional effects from a law, the Court does “not assume unconstitutional legislative intent.” In the summary judgment context, to avoid a nonsuit on the purpose prong, Plaintiff must produce some evidence suggesting an unlawful motive. The Court address the purpose question first. A. The Purpose Prong Plaintiff has failed to provide any evidence that the Legislature’s predominant motivation in passing the Act was only to make abortions more difficult to secure, and this failure is fatal to its motion for summary judgment. In its first argument, Plaintiff notes that House Bill 2075 passed during the same session as several other bills restricting access to abortion, some of which have been en joined by the courts. But as the Court noted when addressing Plaintiffs motion for a preliminary injunction in this case, “the mere fact that the [Legislature passed other provisions of dubious constitutional validity does not speak to the legislative purpose in adopting this provision.” For its second argument, Plaintiff also argues that the Act does nothing to further any of the particular interests the Supreme Court has sanctioned as permissible bases for regulating abortion, but the Court similarly rejected this argument when addressing the preliminary injunction motion: The court rejects plaintiffs suggestion that any State interest other than protecting the potentiality of human life or maternal health necessarily renders a

Purpose Prong Plaintiff has failed to provide any evidence that the Legislature’s predominant motivation in passing the Act was only to make abortions more difficult to secure, and this failure is fatal to its motion for summary judgment. In its first argument, Plaintiff notes that House Bill 2075 passed during the same session as several other bills restricting access to abortion, some of which have been en joined by the courts. But as the Court noted when addressing Plaintiffs motion for a preliminary injunction in this case, “the mere fact that the [Legislature passed other provisions of dubious constitutional validity does not speak to the legislative purpose in adopting this provision.” For its second argument, Plaintiff also argues that the Act does nothing to further any of the particular interests the Supreme Court has sanctioned as permissible bases for regulating abortion, but the Court similarly rejected this argument when addressing the preliminary injunction motion: The court rejects plaintiffs suggestion that any State interest other than protecting the potentiality of human life or maternal health necessarily renders a state law concerning abortion invalid. Casey observed that a statute which, “while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice” cannot be considered a permissible means of serving its legitimate ends. Casey does not limit the state interests that could underlie all state regulations touching on abortion. Thus, Plaintiffs first two arguments suggesting an improper purpose fail. In its final argument, Plaintiff argues that the Act, as written, simply cannot serve any proper state interests, and thus that the Act must be serving an improper purpose. In reply, Defendant suggests several state interests allegedly served by the Act: 1) promoting childbirth over abortion; 2) protecting the consciences of Kansas citizens who object to paying insurance premiums that are calculated to include the costs of elective abortions; 3) lowering insurance costs; and 4) making the public more aware of the actual cost of abortion. Plaintiff argues that the first interest is improper and that the other interests are merely pretextual,

state law concerning abortion invalid. Casey observed that a statute which, “while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice” cannot be considered a permissible means of serving its legitimate ends. Casey does not limit the state interests that could underlie all state regulations touching on abortion. Thus, Plaintiffs first two arguments suggesting an improper purpose fail. In its final argument, Plaintiff argues that the Act, as written, simply cannot serve any proper state interests, and thus that the Act must be serving an improper purpose. In reply, Defendant suggests several state interests allegedly served by the Act: 1) promoting childbirth over abortion; 2) protecting the consciences of Kansas citizens who object to paying insurance premiums that are calculated to include the costs of elective abortions; 3) lowering insurance costs; and 4) making the public more aware of the actual cost of abortion. Plaintiff argues that the first interest is improper and that the other interests are merely pretextual, such that the Act serves no legitimate state interest. But in this argument, Plaintiff again misconceives the nature of its burden. The Court cannot assume unconstitutional legislative intent just because an Act lacks an obvious, constitutionally legitimate intent, and so Plaintiff must produce some evidence suggesting an unlawful motive. Plaintiff has failed to do so, and so the Court need not address the legitimacy of Defendant’s suggested interests. Even if the lack of a legitimate legislative intent served by the Act were evidence of an unconstitutional motive, Plaintiffs argument would still fail; three of the four interests propounded by Defendant are legitimate state interests served by the Act. Defendant’s first claimed state interest, promoting childbirth over abortion, is a recognized state interest, but the state cannot enact laws to serve it if those laws simply make abortions more difficult to secure, without serving any other purpose. As the Casey Court notes, a law that only seeks to strike at the right to an abortion itself, not a law that serves another valid purpose, is an invalid

such that the Act serves no legitimate state interest. But in this argument, Plaintiff again misconceives the nature of its burden. The Court cannot assume unconstitutional legislative intent just because an Act lacks an obvious, constitutionally legitimate intent, and so Plaintiff must produce some evidence suggesting an unlawful motive. Plaintiff has failed to do so, and so the Court need not address the legitimacy of Defendant’s suggested interests. Even if the lack of a legitimate legislative intent served by the Act were evidence of an unconstitutional motive, Plaintiffs argument would still fail; three of the four interests propounded by Defendant are legitimate state interests served by the Act. Defendant’s first claimed state interest, promoting childbirth over abortion, is a recognized state interest, but the state cannot enact laws to serve it if those laws simply make abortions more difficult to secure, without serving any other purpose. As the Casey Court notes, a law that only seeks to strike at the right to an abortion itself, not a law that serves another valid purpose, is an invalid law. For example, the state may enact a measure designed to encourage births that does not further a health interest, if it is a persuasive, not merely a restrictive, measure. And a law that serves an educational role or that otherwise serves a legitimate state interest is not invalid merely because it impacts abortion. “The fact that a law serves a valid purpose, not one designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Here, then, Defendant’s first purported state interest cannot be the sole interest served by a valid statute; if this were the only interest served by the Act, the Act would be unconstitutional. Nevertheless, although the first purported interest is not legitimate, the Act may still serve any of the remaining three interests suggested by Defendant, and Plaintiff offers no evidence that the other three interests suggested by Defendant are merely pretextual or designed to cover up an unconstitutional purpose. Addressing the “conscience”

law. For example, the state may enact a measure designed to encourage births that does not further a health interest, if it is a persuasive, not merely a restrictive, measure. And a law that serves an educational role or that otherwise serves a legitimate state interest is not invalid merely because it impacts abortion. “The fact that a law serves a valid purpose, not one designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Here, then, Defendant’s first purported state interest cannot be the sole interest served by a valid statute; if this were the only interest served by the Act, the Act would be unconstitutional. Nevertheless, although the first purported interest is not legitimate, the Act may still serve any of the remaining three interests suggested by Defendant, and Plaintiff offers no evidence that the other three interests suggested by Defendant are merely pretextual or designed to cover up an unconstitutional purpose. Addressing the “conscience” interest, Plaintiff notes that premiums for abortion riders are pooled with all other premiums to pay abortion claims, so in one sense this legislation is an accounting sleight of hand, giving the illusion that the abortion funds are separate. Plaintiff also notes that pri- or to the Act’s passage, an employer could already choose to exclude abortion coverage from its group policy, making the Act unnecessary for employers who did not wish to provide insurance including abortion coverage. Addressing the insurance cost interest, Plaintiff finally notes insurance rates will likely change very little, if at all, as a result of the Act. But Plaintiffs objections do not undercut the three remaining purported state interests. First, The Act still allows Kansas citizens who object to paying insurance premiums that are calculated to include the costs of elective abortions to avoid paying those premiums, whether they are covered as individuals or as part of a group plan. Even though the premiums are pooled, the cost of abortion services is not factored into the premium paid by those in

interest, Plaintiff notes that premiums for abortion riders are pooled with all other premiums to pay abortion claims, so in one sense this legislation is an accounting sleight of hand, giving the illusion that the abortion funds are separate. Plaintiff also notes that pri- or to the Act’s passage, an employer could already choose to exclude abortion coverage from its group policy, making the Act unnecessary for employers who did not wish to provide insurance including abortion coverage. Addressing the insurance cost interest, Plaintiff finally notes insurance rates will likely change very little, if at all, as a result of the Act. But Plaintiffs objections do not undercut the three remaining purported state interests. First, The Act still allows Kansas citizens who object to paying insurance premiums that are calculated to include the costs of elective abortions to avoid paying those premiums, whether they are covered as individuals or as part of a group plan. Even though the premiums are pooled, the cost of abortion services is not factored into the premium paid by those in plans that do not cover abortions. Second, although, as Plaintiff indicates, the Act does not significantly lower insurance rates for individuals, the Act will likely lower insurance costs in the aggregate, particularly for businesses employing large numbers of people. And third, the Act could make individuals seeking abortions more aware of the actual cost of abortion, at least for those individuals who previously would have paid for an abortion with insurance. All three of these interests are legitimate state interests, and the Court finds no evidence they are merely pretextual. As the Court stated in the preliminary injunction order: Whether one agrees or disagrees with this asserted cost and/or “freedom of conscience” rationale, there is nothing in the record to show that this was not the legislature’s purpose in adopting the law. Moreover, the claimed interests are rational ones that do not necessarily manifest a legislative purpose to create a substantial obstacle to obtaining an abortion.... Whether the practical effect of the law is to actually create a substantial obstacle is another question, but plaintiff has

plans that do not cover abortions. Second, although, as Plaintiff indicates, the Act does not significantly lower insurance rates for individuals, the Act will likely lower insurance costs in the aggregate, particularly for businesses employing large numbers of people. And third, the Act could make individuals seeking abortions more aware of the actual cost of abortion, at least for those individuals who previously would have paid for an abortion with insurance. All three of these interests are legitimate state interests, and the Court finds no evidence they are merely pretextual. As the Court stated in the preliminary injunction order: Whether one agrees or disagrees with this asserted cost and/or “freedom of conscience” rationale, there is nothing in the record to show that this was not the legislature’s purpose in adopting the law. Moreover, the claimed interests are rational ones that do not necessarily manifest a legislative purpose to create a substantial obstacle to obtaining an abortion.... Whether the practical effect of the law is to actually create a substantial obstacle is another question, but plaintiff has not attempted in this motion to put on evidence to establish such an effect, and the court expresses no opinion here on that question. Insofar as the purpose of the law is concerned, the likely effect of it is not so self-evident that it must be said to manifest a legislative intent to obstruct the right to abortion. In sum, Plaintiffs argument that the Act must be predominantly motivated by an improper purpose because it does not serve any legitimate state interest fails. Finally, Plaintiff argues that these interests are legally insufficient to justify burdening abortion. But this argument misunderstands the purpose test in Casey. The purpose test measures only whether the statute’s purpose was to impose an undue burden on abortion rights. Casey holds that “an undue burden is an unconstitutional burden,” even if the statute imposing the burden serves an important state interest; there is no balancing test. For these reasons, Defendant’s cross motion for summary judgment on the question of whether the Act’s predominant purpose was to impose an undue burden on abortion rights is

not attempted in this motion to put on evidence to establish such an effect, and the court expresses no opinion here on that question. Insofar as the purpose of the law is concerned, the likely effect of it is not so self-evident that it must be said to manifest a legislative intent to obstruct the right to abortion. In sum, Plaintiffs argument that the Act must be predominantly motivated by an improper purpose because it does not serve any legitimate state interest fails. Finally, Plaintiff argues that these interests are legally insufficient to justify burdening abortion. But this argument misunderstands the purpose test in Casey. The purpose test measures only whether the statute’s purpose was to impose an undue burden on abortion rights. Casey holds that “an undue burden is an unconstitutional burden,” even if the statute imposing the burden serves an important state interest; there is no balancing test. For these reasons, Defendant’s cross motion for summary judgment on the question of whether the Act’s predominant purpose was to impose an undue burden on abortion rights is granted, and Plaintiffs cross motion for summary judgment on the same issue is denied. B. Effect of the Act Defendant also seeks summary judgment on the question of whether the Act has the effect of imposing a substantial obstacle on a woman’s right to an abortion. As a general matter, a law is deemed unconstitutional if it creates on undue burden on the right to an abortion, that is, if its “effect is to place a substantial obstacle in the path of a woman seeking to abort a nonviable fetus.” Defendant suggests she is entitled to summary judgment on this issue based on three arguments, but all three arguments fail. First, Defendant argues that “[i]n short, plaintiff utterly failed to demonstrate that the [Act] has had any actual impact on women seeking abortions in Kansas.” But the Act does impact at least some women seeking an abortion in Kansas. As the parties have agreed, prior to the Act’s passage, companies comprising over 70% of the market share in Kansas included abortion coverage in their comprehensive policies, coverage that

granted, and Plaintiffs cross motion for summary judgment on the same issue is denied. B. Effect of the Act Defendant also seeks summary judgment on the question of whether the Act has the effect of imposing a substantial obstacle on a woman’s right to an abortion. As a general matter, a law is deemed unconstitutional if it creates on undue burden on the right to an abortion, that is, if its “effect is to place a substantial obstacle in the path of a woman seeking to abort a nonviable fetus.” Defendant suggests she is entitled to summary judgment on this issue based on three arguments, but all three arguments fail. First, Defendant argues that “[i]n short, plaintiff utterly failed to demonstrate that the [Act] has had any actual impact on women seeking abortions in Kansas.” But the Act does impact at least some women seeking an abortion in Kansas. As the parties have agreed, prior to the Act’s passage, companies comprising over 70% of the market share in Kansas included abortion coverage in their comprehensive policies, coverage that is now only available in a separate rider. Purchasing the rider will prove difficult or impossible for many women. From July 2010 to July 2011, the three major health insurers in Kansas with a combined total of over 70% of the market share had a total of 137 paid claims for abortions, and there is no reason to believe that this number is significantly higher or lower than average. Many of these women will now have to pay the full cost of their abortion, without the benefit of insurance coverage. This increased cost to women seeking an abortion, construed in the light most favorable to the nonmoving party, creates a genuine issue of material fact concerning the existence of an impact on women seeking an abortion in Kansas. Second, Defendant argues that, even if the Act imposes a burden, the burden is not undue. Here, Defendant attempts to distinguish between a woman’s ability to make a decision to have an abortion and her ability to pay the financial cost of procuring an abortion, relying primarily on

is now only available in a separate rider. Purchasing the rider will prove difficult or impossible for many women. From July 2010 to July 2011, the three major health insurers in Kansas with a combined total of over 70% of the market share had a total of 137 paid claims for abortions, and there is no reason to believe that this number is significantly higher or lower than average. Many of these women will now have to pay the full cost of their abortion, without the benefit of insurance coverage. This increased cost to women seeking an abortion, construed in the light most favorable to the nonmoving party, creates a genuine issue of material fact concerning the existence of an impact on women seeking an abortion in Kansas. Second, Defendant argues that, even if the Act imposes a burden, the burden is not undue. Here, Defendant attempts to distinguish between a woman’s ability to make a decision to have an abortion and her ability to pay the financial cost of procuring an abortion, relying primarily on cases addressing government funding for births and abortions. Defendant relies on the Supreme Court’s statement in Harris v. McRae that “it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” Defendant also highlights Harris’s statement that the freedom protected by the Due Process Clause “does not confer an entitlement to such funds as may be necessary to realize all of the advantages of that freedom.” Defendant finally relies on Maher v. Roe’s holding that an indigent woman who desires an abortion suffers no disad vantage as a consequence of a state’s decision to fund childbirth because “the State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.” Based on these cases, Defendant argues that the Act only affects a woman’s ability to pay for an abortion, not her decision to have one. While there may be

cases addressing government funding for births and abortions. Defendant relies on the Supreme Court’s statement in Harris v. McRae that “it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” Defendant also highlights Harris’s statement that the freedom protected by the Due Process Clause “does not confer an entitlement to such funds as may be necessary to realize all of the advantages of that freedom.” Defendant finally relies on Maher v. Roe’s holding that an indigent woman who desires an abortion suffers no disad vantage as a consequence of a state’s decision to fund childbirth because “the State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.” Based on these cases, Defendant argues that the Act only affects a woman’s ability to pay for an abortion, not her decision to have one. While there may be a difference between those two factors in cases involving state funding of abortion, owing to the state’s role in providing funds for healthcare in those cases, here it is a distinction without a difference. The state has imposed a restriction on a private funding mechanism for abortion by preventing many women from continuing to pool resources under insurance policies in order to pay for abortions. This restriction burdens women’s ability to pay using private funds, which is fundamentally different from refusing to provide state funds to women to pay for abortions. The first is an added burden, while the second is only a refusal to remove a burden. And the restriction in this case directly impacts how much a woman with insurance will pay out of pocket for an abortion. As the parties agreed, the cost for an abortion in a clinic ranges from $450 to $1,675, and hospital abortions can cost upwards of $10,000. Some women lack the finances to pay for an abortion out of pocket, and some are forced to delay an

a difference between those two factors in cases involving state funding of abortion, owing to the state’s role in providing funds for healthcare in those cases, here it is a distinction without a difference. The state has imposed a restriction on a private funding mechanism for abortion by preventing many women from continuing to pool resources under insurance policies in order to pay for abortions. This restriction burdens women’s ability to pay using private funds, which is fundamentally different from refusing to provide state funds to women to pay for abortions. The first is an added burden, while the second is only a refusal to remove a burden. And the restriction in this case directly impacts how much a woman with insurance will pay out of pocket for an abortion. As the parties agreed, the cost for an abortion in a clinic ranges from $450 to $1,675, and hospital abortions can cost upwards of $10,000. Some women lack the finances to pay for an abortion out of pocket, and some are forced to delay an abortion while gathering the necessary funds to pay for an abortion; with insurance that covered the abortion, they would not face these significant challenges. The undisputed facts on this issue, construed in the light most favorable to the nonmoving party, create a genuine issue of material fact concerning whether the Act imposes an undue burden on women seeking an insurance-funded abortion in Kansas. Third, Defendant argues that, even if the Act does impose a substantial burden on some women, the Act does not impose a substantial burden in a large fraction of the cases in which the Act is relevant, as required to meet the undue burden standard under Casey. In Casey, the Supreme Court held that showing that a statute will operate as a substantial obstacle in a large fraction of the cases in which it is relevant is sufficient, albeit not necessary, to show that the statute creates an undue burden. Whether the large-fraction criteria is met is determined largely by the number of cases in which the statute is relevant — the denominator

abortion while gathering the necessary funds to pay for an abortion; with insurance that covered the abortion, they would not face these significant challenges. The undisputed facts on this issue, construed in the light most favorable to the nonmoving party, create a genuine issue of material fact concerning whether the Act imposes an undue burden on women seeking an insurance-funded abortion in Kansas. Third, Defendant argues that, even if the Act does impose a substantial burden on some women, the Act does not impose a substantial burden in a large fraction of the cases in which the Act is relevant, as required to meet the undue burden standard under Casey. In Casey, the Supreme Court held that showing that a statute will operate as a substantial obstacle in a large fraction of the cases in which it is relevant is sufficient, albeit not necessary, to show that the statute creates an undue burden. Whether the large-fraction criteria is met is determined largely by the number of cases in which the statute is relevant — the denominator in the large-fraction equation. If the denominator casts a wide net, it becomes significantly more difficult to show that the statute substantially burdens a large fraction of those included in the denominator. Here, Defendant urges the Court to consider the number of cases in which the statute is relevant as the total number of people in Kansas, claiming that all people in Kansas are affected by the statute. In the alternative, Defendant argues that the Court should consider the group of women who had insurance covering abortion before the Act passed, and who have now lost that insurance, regardless of whether they sought or will seek an abortion. Defendant claims that the number of women actually affected by the change is only a tiny percentage of either group, because most of those women will not seek an abortion covered by insurance in a given year. Plaintiff argues that the appropriate denominator is women who had insurance coverage for abortion, who no longer do, but who may need an abortion at some point. The Supreme Court provides

in the large-fraction equation. If the denominator casts a wide net, it becomes significantly more difficult to show that the statute substantially burdens a large fraction of those included in the denominator. Here, Defendant urges the Court to consider the number of cases in which the statute is relevant as the total number of people in Kansas, claiming that all people in Kansas are affected by the statute. In the alternative, Defendant argues that the Court should consider the group of women who had insurance covering abortion before the Act passed, and who have now lost that insurance, regardless of whether they sought or will seek an abortion. Defendant claims that the number of women actually affected by the change is only a tiny percentage of either group, because most of those women will not seek an abortion covered by insurance in a given year. Plaintiff argues that the appropriate denominator is women who had insurance coverage for abortion, who no longer do, but who may need an abortion at some point. The Supreme Court provides guidance on choosing a denominator in Casey. In assessing a spousal-notification requirement for abortions, the Casey court took as its denominator the less than one percent of women who were “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” The Court counted only married women, not their husbands. The Court counted only those seeking abortions, not all married women. The Court counted only those not willing to notify their husbands, excluding those who would have notified their husbands absent the law in question. The Court accepted this circumscribed group because, it reasoned, these women were the people who would be affected by the statute, that is, the women whose access to abortion would be limited by the statute. Here, then, the appropriate denominator is women seeking abortions who would pay for the abortion with insurance but cannot because of the Act. If husbands who might object to their wife having an abortion were not

guidance on choosing a denominator in Casey. In assessing a spousal-notification requirement for abortions, the Casey court took as its denominator the less than one percent of women who were “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” The Court counted only married women, not their husbands. The Court counted only those seeking abortions, not all married women. The Court counted only those not willing to notify their husbands, excluding those who would have notified their husbands absent the law in question. The Court accepted this circumscribed group because, it reasoned, these women were the people who would be affected by the statute, that is, the women whose access to abortion would be limited by the statute. Here, then, the appropriate denominator is women seeking abortions who would pay for the abortion with insurance but cannot because of the Act. If husbands who might object to their wife having an abortion were not included in Casey, then the entire population of Kansas cannot be included here. Further, the pool of women who had insurance coverage for abortions but have now lost it is still too broad, given that the Casey Court only included those women seeking an abortion. And, following that reasoning, the denominator cannot include women who would have paid for their own abortion even if they had insurance that could have paid for it; the Act does not affect these women. The Court acknowledges that using this figure as the denominator makes the large-fraction requirement a low bar, but, as the Casey Court noted, whether the Act serves as an undue burden “must be judged by reference to those for whom it is an actual rather than an irrelevant restriction.” In Kansas, as noted, the three major health insurers had a total of 137 paid claims for abortions over the course of a single year, and taking this figure as a rough approximation of the annual average, it suggests that the denominator should be in the range

included in Casey, then the entire population of Kansas cannot be included here. Further, the pool of women who had insurance coverage for abortions but have now lost it is still too broad, given that the Casey Court only included those women seeking an abortion. And, following that reasoning, the denominator cannot include women who would have paid for their own abortion even if they had insurance that could have paid for it; the Act does not affect these women. The Court acknowledges that using this figure as the denominator makes the large-fraction requirement a low bar, but, as the Casey Court noted, whether the Act serves as an undue burden “must be judged by reference to those for whom it is an actual rather than an irrelevant restriction.” In Kansas, as noted, the three major health insurers had a total of 137 paid claims for abortions over the course of a single year, and taking this figure as a rough approximation of the annual average, it suggests that the denominator should be in the range of 140 women. These women now have to pay for their abortion, should they choose to have one, directly, and not with insurance funds. Absent more evidence, it is difficult to determine whether this burden is an undue one for a large fraction of these women, but the significant additional costs, considered in the light most favorable to Plaintiff, create a genuine issue of material fact concerning the number of these women whose right to an abortion is unduly burdened by the Act. Thus, Defendant’s cross motion for summary judgment on the question of whether the Act has the effect of imposing a substantial obstacle on a woman’s right to an abortion will be denied. This issue remains to be decided at trial. IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs Motion for Summary Judgment (Doc. 57) is DENIED. IT IS FURTHER ORDERED that Defendant’s Cross Motion for Summary Judgment (Doc. 65) is GRANTED in part and DENIED in part. IT IS SO ORDERED. . Fed.R.Civ.P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir.2008). . City

of 140 women. These women now have to pay for their abortion, should they choose to have one, directly, and not with insurance funds. Absent more evidence, it is difficult to determine whether this burden is an undue one for a large fraction of these women, but the significant additional costs, considered in the light most favorable to Plaintiff, create a genuine issue of material fact concerning the number of these women whose right to an abortion is unduly burdened by the Act. Thus, Defendant’s cross motion for summary judgment on the question of whether the Act has the effect of imposing a substantial obstacle on a woman’s right to an abortion will be denied. This issue remains to be decided at trial. IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs Motion for Summary Judgment (Doc. 57) is DENIED. IT IS FURTHER ORDERED that Defendant’s Cross Motion for Summary Judgment (Doc. 65) is GRANTED in part and DENIED in part. IT IS SO ORDERED. . Fed.R.Civ.P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir.2008). . City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir.2010). . Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.2004). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.