Opinion
No. CV 03-0827112S
March 18, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
On July 21, 2003, the plaintiff, Rachael Barrett, filed an eleven-count complaint against the defendants, La Petite Academy, Inc. (La Petite), Cynthia M. Romero, and ADVO, Inc., claiming damages for injuries and losses allegedly sustained as a result of a report being filed with the department of children and families (DCF) stating that the plaintiff had abused a child while working at La Petite. In addition to La Petite, the complaint names Romero, the director of La Petite and the plaintiff's direct manager, as well as ADVO, the company for which La Petite provides day care services and on whose property La Petite is located.
The following facts are undisputed. On Friday, October 25, 2002, the plaintiff reported for work wearing denim pants and a sweater, in violation of La Petite's dress code policy. Later that morning she was asked by Romero to go home and change and left work for approximately one-half hour to comply with that request. Melissa Welker, a La Petite employee, approached Romero and stated that she saw the plaintiff grab a child and shake her harshly while yelling, "Listen to your teacher!" Later that day, Welker and Bertsey Monroe, another La Petite employee, gave Romero handwritten statements regarding the plaintiff's discipline of the child. Romero approached the plaintiff after the children had left for the day and asked her to write down what had happened in her classroom that day. Confused by the request, the plaintiff refused. Romero then told the plaintiff that there had been an abuse allegation made against her regarding Cassie, one of the children in the plaintiff's classroom, and that she would be suspended with pay for two days pending an investigation. The next day, the plaintiff called Cassie's mother to inquire about the abuse complaint. On October 28, 2002, Romero contacted DCF to report the allegation of abuse. On October 30, 2002, the plaintiff was terminated for inappropriate discipline of a child in violation of La Petite's code of conduct and for inappropriately contacting the child's parents to discuss La Petite's investigation of the allegation. The DCF investigation later concluded that the claim before it was unsubstantiated and closed its file.
Count one states a claim for intentional infliction of emotional distress directed solely at Romero. Count two is directed at Romero and states a claim for negligent infliction of emotional distress. Counts three and four also sound in negligent infliction of emotional distress and are directed against La Petite and ADVO, respectively. Count five alleges slander per se against Romero; count six alleges slander per se against La Petite; and count seven alleges slander per se against ADVO. Counts eight, nine and ten state claims for defamation by compelled self-publication against Romero, La Petite and ADVO, respectively. Count eleven claims malicious prosecution/vexatious suit and does not specifically state which defendant it is directed towards.
On September 20, 2004, the defendants filed this motion for summary judgment as to all counts of the complaint. In support of their motion for summary judgment the defendants submitted the following: excerpts of the plaintiff's deposition; two of the plaintiff's continuing education records; La Petite's code of conduct; La Petite's guidelines for abuse and neglect policies; La Petite's dress code; La Petite's new hire packet and staff handbook acknowledgment; La Petite's orientation packet; DCF packet entitled "What Mandated Reporters Need to Know About Connecticut Child Abuse Reporting Laws"; two written warnings from La Petite's former director, one regarding the plaintiff's tardiness and the other regarding her personal use of La Petite's telephone; La Petite's associates handbook; a handwritten incident report by Welker; a handwritten incident report by Monroe; the plaintiff's discharge form; a letter from Romero regarding the alleged abuse; DCF statement of confidentiality; and the DCF finding of the abuse allegation as unsubstantiated. Also included are affidavits from Romero and Welker.
On November 4, 2004, the plaintiff filed a memorandum in opposition to the defendant's motion for summary judgment, accompanied by excerpts of the plaintiff's deposition; excerpts from Romero's deposition; excerpts from Monroe's deposition; a child care agreement between ADVO and La Petite with an amendment and addendums; and the plaintiff's employee personal information page.
I
The defendants claim that as a matter of law, La Petite and Romero did not defame, inflict emotional distress, or maliciously prosecute the plaintiff because as mandatory reporters under Connecticut law, they must report any suspicion or belief of child abuse to DCF. The plaintiff argues that there are two main issues of fact contained throughout each of the eleven counts; the first is whether the plaintiff's conduct created "reasonable cause" for Romero to suspect and report abuse allegations to DCF; the second, is whether Romero made the report to DCF in good faith. The plaintiff contends that given the inconsistencies with the statements of the La Petite staff and the fact that Romero waited until Monday, October 28, 2002 to make a report to DCF, there is a legitimate material question as to whether Romero truly suspected abuse or if she made the report because she and the plaintiff did not get along.
II
Under General Statutes § 17a-101(b), to achieve the state's public policy goal of protecting children from child abuse and neglect, "[t]he following persons shall be mandated reporters . . . any person paid to care for a child in any public or private facility, child day care center, group day care home or family day care home licensed by the state . . ."
General Statutes § 17a-101a states in relevant part: "Any mandated reporter, as defined in § 17a-101, who in the ordinary course of such person's employment or profession has reasonable cause to believe that any child under the age of eighteen years (1) has been abused or neglected, as defined in § 46b-120, (2) has had nonaccidental physical injury, or injury which is at variance with the history given of such injury, inflicted upon such child, or (3) is placed at serious risk of imminent harm, shall report or cause a report to be made in accordance with the provisions of § 17a-101b to 17a-101d, inclusive."
General Statutes § 17a-101e(b) provides that "[a]ny person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to §§ 17a-101a to 17a-101d, inclusive, and 17a-103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect."
It is not disputed that Romero and La Petite are mandatory reporters under the statute. The plaintiff contends however, that there was no reasonable cause for the report and that it was made in bad faith, thus making the defendants subject to civil liability. She disputes the time line of events given by the defendants regarding when, and even if, Welker reported the alleged incident to Romero. Romero and Welker state that Welker approached Romero in the late morning just before leaving to attend her college classes and that Welker gave Romero her handwritten statement when she returned to La Petite around one o'clock that afternoon. The plaintiff states that Welker, who was one of the teachers covering the plaintiff's classroom when she went home to change her clothing, left for her class directly from the classroom upon the plaintiff's return and could not have reported the incident to Romero at that time. The plaintiff also points to the DCF report that states Romero learned of the alleged incident that afternoon. In addition, she asserts that Monroe's account differs from Welker's in that Monroe stated that she saw the plaintiff take the child into the bathroom and that she thought the plaintiff had disciplined the child in an inappropriate manner whereas Welker stated that she saw the plaintiff shake the child.
"A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." Bartlett v. Heise, 84 Conn.App. 424, 428, 853 A.2d 612 (2004). What happened to the child is not the material fact in question, but rather whether Romero had reasonable cause to make a report to DCF. Regardless of whether Welker told Romero about the alleged incident before she left for class or later that afternoon, it remains that both Welker and Monroe wrote and signed statements that afternoon that alleged that the plaintiff had inappropriately disciplined a child, with Welker specifically alleging that the plaintiff shook the child. Welker stated the same facts in a sworn affidavit and Monroe gave deposition testimony in line with her statement. It was based on those statements that the report was made to DCF. While the plaintiff disputes whether Welker ever made the abuse allegation, she did not present any evidence to contradict Welker's handwritten statement or affidavit. Rather, she asserted that she did not think that Romero had reasonable cause to report the incident to DCF because she does not believe that the series of events took place in the way the defendants' claim. While it is the moving party that bears the burden of showing the absence of any genuine issue of material fact, "the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . ." Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59 (2004). It is not enough for the plaintiff to argue that Romero should have known that the allegations against her were baseless and should have decided in good faith not to submit a report to DCF.
In Morales v. Kagel, 58 Conn.App. 776, 755 A.2d 915 (2000), the plaintiff argued that the defendant, a mandated reporter, should have undertaken further investigation before making a report to DCF. In upholding the decision of this court, the Appellate Court held that there was nothing in the General Statutes that required a mandated reporter to undertake further investigation. Id., 781-82. The plaintiff in the present case claims that Romero should have realized that there was no basis to the allegations, but this implies a duty on Romero's part to further investigate Welker and Monroe's claims, but Romero had no such duty. As a mandated reporter, she need only have reasonable cause to make a report. It is for DCF to investigate and make the ultimate decision regarding the abuse allegations. Id., 782. While La Petite may have conducted its own investigation to determine whether the plaintiff violated its policies, it was for DCF to decide whether the allegations amounted to abuse. The plaintiff does not dispute that Welker and Monroe wrote the handwritten statements submitted by the defendants nor does she give any reason why Romero should not trust Welker and Monroe. Also she has presented no evidence as to why those statements would not give Romero reasonable cause to report the incident. It is concluded that Romero had reasonable cause to inform DCF about the allegation of abuse.
To qualify for the immunity provided by General Statutes § 17a-101e(b), the report to DCF must be made in good faith. "In common usage, the term `good faith' has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking means being faithful to one's duty or obligation . . . It is a subjective standard of honesty of fact in the conduct or transaction concerned, taking into account the person's state of mind, actual knowledge and motives . . . Whether good faith exists is a question of fact to be determined from all the circumstances." Greco v. Anderson, Superior Court, judicial district of New Britain, Docket No. CV 00 0501458 (October 23, 2000, Shortall, J.) ( 28 Conn. L. Rptr. 605).
Our Appellate Court has stated:
"[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . [t]he summary judgment rule [however] would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . Our Supreme Court has held that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Jaser v. Fischer, 65 Conn.App. 349, 357, 783 A.2d 28 (2001).
Plaintiff's assertion that Romero acted in bad faith by making the report to DCF is not credibly supported by the evidence she submitted in support of her memorandum in opposition. In the excerpts submitted of her own deposition, the plaintiff stated that she and Romero did not get along, but was only able to cite one instance in which she found Romero's behavior to be rude. The plaintiff also submitted an excerpt of Romero's deposition in which she stated she had no negative feelings toward the plaintiff and that she had concluded to "try a little harder" when it came to getting the plaintiff to work well with her. Even when viewing this evidence in the light most favorable to the plaintiff, it does not lend weight to the assertion that Romero made the report to DCF because of her personal dislike for the plaintiff.
The plaintiff stresses that Romero did not immediately pull the plaintiff out of the classroom when the allegation was brought to her attention and did not submit a report to DCF or tell the parents of the child allegedly abused about the allegations until Monday, October 28, 2002 and this shows that Romero was acting in bad faith when she made the report to DCF. The excerpts of Romero's deposition submitted to support these assertions, however, do nothing more than give Romero's account of her activity that day and explain that before taking any action, she consulted a supervisor. The supervisor directed her to wait until the children had left for the day before approaching the plaintiff to get a statement from her and did not direct her to remove the plaintiff from the classroom. Also, while the plaintiff correctly states that Romero should have called to report the incident to DCF within 12 hours and should have made a written report within 48 hours pursuant to §§ 17a-101b(a) and 17a-101c.
General Statutes § 17a-101b(a) states in relevant part:
An oral report shall be made by a mandated reporter as soon as practicable but not later than twelve hours after the mandated reporter has reasonable cause to suspect or believe that a child has been abused or neglected or placed in imminent risk of serious harm, by telephone or in person to the Commissioner of Children and Families or a law enforcement agency.
General Statutes § 17a-101c states in relevant part:
Within forty-eight hours of making an oral report, a mandated reporter shall submit a written report to the Commissioner of Children and Families or his representative.
Romero stated in her deposition that when she was about to place the call to DCF, she realized it was past five o'clock and that she would have to wait until Monday. The plaintiff is correct in pointing out that the DCF hotline receives calls 24 hours a day, but the deposition testimony she submitted does not show that Romero was aware of that fact.
Finally the plaintiff argues that the inconsistencies in the statements of Romero, Welker and Monroe, raise questions about Romero's good faith. She also contends that under § 17a-101e, Romero had a choice to not make a report to DCF as long as she made that decision in good faith.
The relevant language of § 17a-101e states: "Any person, institution or agency which, in good faith, makes, or in good faith does not make, the report . . . shall be immune from any liability, civil or criminal."
The plaintiff contends that immunity was extended to those who in good faith do not make a report to encourage mandatory reporters to use good judgment in reporting suspected abuse and neglect and argues that Romero should have realized that the allegations were baseless and should not have, in good faith, submitted a report to DCF.
While the time line of events is disputed by the plaintiff, the dispositive question remains whether Romero had reasonable cause to suspect abuse. Plaintiff's claim that Romero should have looked at the situation and concluded that there was no abuse is not supported by statute. See Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997); Morales v. Kagel, supra, 58 Conn.App. 776 and Morales v. Kagel, 23 Conn. L. Rptr. No. 5 (December 21, 1998, Wagner, J.) It is concluded that based on the handwritten statements of Welker and Monroe, that Romero did have reasonable cause to suspect abuse. While the state does have an interest in encouraging mandated reporters to use good judgment in reporting so as to avoid overburdening the system; Ward v. Greene, 267 Conn. 539, 560, 839 A.2d 1259 (2004); the state also has even a greater interest in preventing the abuse and neglect of children, as evidenced by their grant of immunity to those who report suspected abuse in good faith. A report made to DCF in good faith may cause some discomfort for an innocent person suspected of child abuse but cannot be the basis for a lawsuit.
Because there is no material question of fact in dispute and the statutory requirements are clear, defendants' Motion for Summary Judgment is granted.
Wagner, J. Judge Trial Referee