Opinion
No. 5000849.
December 12, 2006.
MEMORANDUM OF DECISION RE MOTION TO STRIKE #112
On April 11, 2006, the plaintiff, Andrea Charron, filed her original eight-count complaint and, on July 5, 2006, a revised complaint against the defendants, Anne Hatfield and the town of Griswold, her former employer. Counts one, two and eight are against the town alleging in count one, a claim under General Statutes § 31-51m, the whistleblower statute; in count two, a claim under General Statues § 31-51q, the first amendment retaliation statute; and, in count eight, a claim for indemnification under General Statutes § 7-101a.
Counts three through seven are against Hatfield and allege the following causes of action: count three is an invasion of privacy claim, count four is a civil defamation claim, count five is a criminal defamation claim, count six is a claim for negligent infliction of emotional distress, and count seven is a claim for intentional infliction of emotional distress.
The plaintiff alleges the following facts in the complaint. She was employed by the town and held the position of assistant and secretary to the board of selectmen for twenty-three years. Hatfield was the first selectperson of the town. On January 3, 2006, a fire broke out at the former town hall. At a press meeting, Hatfield made statements to the effect that the town was not properly insured to cover any potential loss from the fire and intimated that she had knowledge about the failure to renew or cancel the policy. Hatfield proceeded to blame the other two selectmen and the finance director for the lack of insurance and for gross negligence. Hatfield stated to the plaintiff that she would terminate the finance director. Thereafter, the plaintiff drafted a memorandum recounting these events, which was first reviewed by Hatfield and then submitted to the other selectpersons. Hatfield became enraged over this memo and threatened the plaintiff with civil and criminal sanctions. The plaintiff claims that she was then subjected to public insults and humiliation, disciplinary actions and, eventually, discharged. The plaintiff alleges that she suffered emotional and psychological injuries from the town's conduct.
On August 2, 2006, the town filed a motion to strike counts one, two and eight of the complaint on the ground that the allegations in each of these counts fail to state a claim upon which relief can be granted. Pursuant to Practice Book § 10-42, the town filed a memorandum of law in support of the motion, and, on September 8, 2006, the plaintiff submitted a memorandum in opposition. On September 15, 2006, the town submitted a reply memorandum of law.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a town's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). Also, "[a] motion to strike is the proper vehicle for resolving the issues of whether a cause of action is barred by governmental immunity and whether an exception to governmental immunity is sufficiently pleaded." (Internal quotation marks omitted.) Goode v. Wilton, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 00 0180777 (October 9, 2001, Mintz, J.) ( 31 Conn. L. Rptr. 25). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).
The town moves to strike counts one, two and eight for failure to allege facts sufficient to state a cause of action for a violation of the whistleblower statute, the first amendment retaliation statute and a claim for indemnification, respectively. In its memorandum of law, the town argues that as to counts one and two, a violation of § 31-51m and § 31-51q, a municipality is liable only for negligent acts of its officials, and, in the present case, the plaintiff has pleaded facts for intentional, wanton and reckless behavior against the town for which the town is protected from liability under General Statutes § 52-557n(a)(2)(A) based on governmental immunity; and, that as to count eight for indemnification under § 7-101a, the plaintiff has failed to plead facts sufficient to sustain a claim for indemnification because, the underlying claims in counts three, four, five and seven are directed solely at Hatfield's intentional acts, and, the claim for negligent infliction of emotional distress in count six, also against Hatfield, fails to allege the necessary facts for that cause of action.
The plaintiff counters that the motion to strike both counts one and two must be denied because the town has waived its right to governmental and "sovereign" immunity through the enactment of § 31-51m and § 31-51q, which abrogates its immunity. Moreover, the plaintiff argues that the motion to strike count eight must also be denied because § 7-101a is predicated upon the town's conduct in violation of §§ 31-51m and 31-51q, which is permitted for the "alleged infringement of any person's civil rights." In addition, the plaintiff asserts that count eight is not based on any of the claims in counts three, four, five, six and seven against Hatfield, as the town argues, but sets forth a cause of action against the town for indemnification under § 7-101a for a violation in counts one and two for which indemnification is allowed. Finally, the plaintiff contends that "[w]hile there are certain allegations from [c]ount [t]hree, based on intentional conduct, incorporated into [c]ount [e]ight, that does not render [c]ount [e]ight defective and subject to a [m]otion to [s]trike;" that the town should have filed a request to revise count eight to remove these paragraphs incorporating the allegations of count three or move to strike those paragraphs to which it objects; and that the town's conclusion that count six may not be factually sufficient to state a claim for negligent infliction of emotional distress is irrelevant because count six "is directed solely to Defendant Hatfield."
COUNTS ONE AND TWO: GENERAL STATUTES § 31-51m AND § 31-51q
In its memorandum of law in support of the motion to strike, the town argues that it is protected from liability by governmental immunity under § 52-557n for intentional acts and the plaintiff has pleaded only intentional conduct in counts one and two of her complaint alleging a violation of the whistleblower statute and retaliatory discharge from her position with the town. Section 31-51q makes it illegal for an employer to discipline an employee in retaliation for the employee's rights under § 31-51m. Section 31-51m, in turn, protects the employee from retaliatory discharge when the employee has complained, in good faith, about a suspected violation of state or federal law or regulation. Arnone v. Enfield, 79 Conn.App. 501, 506-07, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003). Section 31-51q provides an employee protection for the exercise of her first amendment constitutional rights that address a matter of public concern. Cotto v. United Technologies Corp., 251 Conn. 1, 6 n. 4, 738 A.2d 623 (1999); Daley v. Aetna Life Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999) (employee's exercise of right of freedom of expression that addresses a matter of public concern is protected speech under § 31-51q).
While "a motion to strike ordinarily is an improper method for raising a claim of governmental immunity . . . [courts] have recognized . . . that where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant . . . may attack the legal sufficiency of the complaint through a motion to strike. " Doe v. Board of Education, 76 Conn.App. 296, 299 n. 6, 819 A.2d 289 (2003). It is unclear whether from the face of the complaint, in the present case, the town is engaging in a governmental function. For purposes of this memorandum, the court will address the governmental immunity argument advanced by the town.
In her complaint, the plaintiff alleges that the memorandum she drafted to Hatfield on January 12, 2006, involved matters of public concern protected by the first amendment of the federal constitution and its analogous provision in the Connecticut constitution. Therein, she stated that "on the morning of the old town fire, Hatfield said there was no insurance covering the building and that based on this remark, the plaintiff reasonably believed that someone [had] told Hatfield on the morning of the fire of the lack of insurance coverage. The memorandum disclose[d] that Hatfield later attempted to claim that she did not know about the lack of insurance on the morning of the fire and that she just made a `good guess' there was no insurance. The memorandum further disclose[d] that Hatfield advised the plaintiff that the insurance company had notified Hatfield that no lapse notice had been sent to the town because someone from the town called and cancelled the insurance policy. [The plaintiff] stated in the [m]emorandum that it was possible that the individual who advised Hatfield about the lack of coverage on the morning of the fire could be the same individual who cancelled the policy. [The plaintiff] believed that the other [s]electmen and the [f]inance [d]irector of the town, who were being blamed for the oversight, should know these facts as the insurance issue occurred on `their watch' and they are `honorable men.' The plaintiff believed it was wrong to mislead the public by statements that the lack of insurance was the result of `gross negligence' by certain individuals if that was not truly the case. The [t]own, through the actions of Hatfield, retaliated against the plaintiff, subjected her to harassment in her place of employment and ultimately terminated her employment due to her protected speech in violation of Section 31-51q. The plaintiff had nothing personally to gain by the speech. She sought only to protect the town and its representatives, and to prevent false information from being provided to the public. The aforesaid actions of the town were malicious, intentional, willful, wanton, and/or in reckless disregard for the plaintiff's rights."
The town maintains that since the plaintiff has alleged only conduct of Hatfield involving intentional acts, it is immune from liability for those types of acts under § 52-557n(a)(2)(A). That statute, which codified governmental immunity, provides in relevant part: (a)(2) "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct . . ." General Statutes § 52-557n(a)(2)(A). Section 31-51m(a)(2) defines an employer as "the state and any political subdivision of the state . . ." Section 31-51q provides: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or of article first of the Constitution of the state . . . shall be liable to such employee for damages caused by such discipline discharge . . ." By enacting §§ 31-51m and 31-51q, which impose liability on the state and any political subdivision of the state for the actions of its officials when an employee reports official violations and the employee is subsequently discharged for filing the report, the language of [§§ 31-51m and 31-51q] expressly abrogates the traditional common-law doctrines in this state that municipalities are immune from liability. Therefore, the town is not protected by governmental immunity for violations of certain protected activities alleged under § 31-51q based on the whistle-blowing statute.
Section 31-51m(b) provides: "No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer."
In order to set forth an action for retaliatory discharge under § 31-51q in violation of the whistleblower statute, § 31-51m, "the plaintiff . . . must allege: (1) that [she was] exercising rights protected either under the First Amendment to the United States Constitution or §§ 3,4, or 14 under the constitution of Connecticut; (2) that [she was] disciplined or discharged by exercising these rights; and (3) that the exercise of these rights did not substantially or materially interfere with [her] bona fide job performance or with [her] working relationship with [her] employer." (Internal quotation marks omitted.) Dubowski v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 044001320 (August 18, 2006, Shapiro, J.) ( 42 Conn. L. Rptr. 17, 18); see also Arnone v. Enfield, 79 Conn.App. 501, 507, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).
In the present case, the plaintiff has alleged that she was discharged by an official of the town for reporting misconduct to the other town selectpersons; that her memorandum involved a matter of public concern, an activity protected by the federal and Connecticut constitutions; that she was subsequently discharged for exercising her freedom of speech; that the town and Hatfield subjected the plaintiff to harassment and terminated her employment for exercising her right of free expression; that she had nothing to personally gain from the speech; and, that she sought only to protect the town and its representatives by reporting the alleged misconduct of Hatfield. The plaintiff has alleged sufficient facts for a cause of action of retaliatory discharge based on the whistleblower statute. For the foregoing reasons, the court denies the town's motion to strike counts one and two.
COUNT EIGHT: GENERAL STATUTES § 7-101a
Next, the town argues that count eight should be stricken because the plaintiff may not seek indemnification under § 7-101a for the underlying claims alleged in counts three, four, five and seven because each of these counts allege intentional acts by Hatfield and for count six, because it fails to allege essential elements necessary to establish negligent infliction of emotional distress. Section 7-101a(a) provides in relevant part that "[e]ach municipality shall protect and save harmless any municipal officer, whether elected or appointed, of any board, committee, council, agency or commission . . . from financial loss and expense including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person's civil rights, on the part of such officer or such employee while acting in the discharge of his duties." At common law, "a municipality itself was generally immune from liability for its tortious acts . . ." (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). Connecticut courts have also recognized, however, "that governmental immunity may be abrogated by statute . . . Thus, the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Id. "While [a] municipality itself was generally immune from liability for its tortious acts at common law . . . its employees faced the same personal tort liability as private individuals . . ." (Internal quotation marks omitted.) Doe v. Board of Education, supra, 76 Conn.App. 300. Pursuant to § 52-557n(a)(1) "a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of . . . any employee . . . thereof acting within the scope of his employment or official duties (2) . . . a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions of any employee . . . which constitute criminal conduct, fraud, actual malice or willful misconduct . . ." General Statutes §§ 52-557n(a)(1)(A) and 52-557n(a)(2)(B).
COUNTS THREE, FOUR, FIVE AND SEVEN Whether count eight alleges sufficient facts is based on whether the underlying claims are within the purview of § 7-101a, namely, whether they are claims of negligence or infringement of the plaintiff's civil rights. Under count three of the complaint, the plaintiff alleges that Hatfield "intentionally and recklessly advised reporters of plaintiff's involvement with the lack of insurance for the Town Hall as well as other alleged misconduct by plaintiff." The plaintiff alleges that her reputation was damaged because this false impression would be highly offensive to a reasonable person, that Hatfield invaded her privacy and placed her in a false light to the public and, as a result, the plaintiff has suffered damages. In counts four and five, both of which sound in defamation, and count seven for the intentional infliction of emotional distress, the plaintiff incorporates the allegations of count three and alleges intentional and reckless conduct on behalf of Hatfield in each count, respectively. All of these actions alleged in these counts are intentional and wanton tortious acts of a municipal employee and do not subject the town for any derivative liability under § 7-101a. A municipality "pursuant to § 7-101a . . . is not liable for indemnification of any financial loss resulting from a malicious, wilful or wanton act [of its municipal employee]." West Haven v. Hartford Ins. Co. 221 Conn. 149, 159, 602 A.2d 988 (1992). COUNT SIX As to count six, in which the plaintiff has alleged a cause of action for negligent infliction of emotional distress, the town argues that, because the plaintiff has incorporated paragraphs one through sixty-six from counts one through five, all of which are premised on intentional, wanton and reckless acts of Hatfield, the plaintiff's indemnification claim in count eight, which may only pertain to a valid negligence action, cannot be sustained. In addition to incorporating the allegations of the previous five counts, the plaintiff also alleges in count six that "[a]s a result of . . . Hatfield's conduct, the plaintiff suffered severe emotional distress; was required to undergo counseling and prescribed medications by her physician; [that] . . . Hatfield knew or should have known that her conduct in the termination of plaintiff's employment was likely to cause emotional distress to the plaintiff, [and] . . . the plaintiff has and continues to suffer damages including, but not limited to, emotional distress, pain and suffering, severe anxiety and lack of sleep."The elements necessary for a cause of action for negligent infliction of emotional distress are "(1) the [town's] conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the [town's] conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). "Intent is not an element of the tort of negligent infliction of emotional distress." Wilson v. Jefferson, 98 Conn.App. 147, 162 n. 13, 908 A.2d 13 (2006).
Since the allegations in count six are based on the intentional and reckless conduct of Hatfield, the plaintiff has not alleged a valid claim of negligent infliction of emotional distress against Hatfield, and, as a result, derivative liability under § 7-101a cannot be imposed on the town in count eight. For the foregoing reasons, the court grants the town's motion to strike count eight.
CONCLUSION
In sum, the court denies the town's motion to strike counts one and two and grants the motion to strike count eight.