Opinion
No. HHD CV 09-4042637-S
March 31, 2011
MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION
The plaintiff has moved for reconsideration of the court's ruling on the defendant's motion for summary judgment as to counts three (breach of the covenant of good faith and fair dealing) and count six (alleging violation of General Statutes § 46a-60(a)(4)) as articulated in its memorandum of decision dated January 26, 2011. The court hereby grants the motion for reconsideration but reaffirms its prior ruling granting summary judgment as to the foregoing counts for the following reasons:
Connecticut recognizes a common-law action for wrongful termination where the employment action is contrary to a strong and well-established public policy of the state; see Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980); and where no other means exists to vindicate the public policy. See Burnham v. Karl Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000). 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." (Emphasis in original; internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., supra, 252 Conn. 159-60. As to count three, the plaintiff's claim for breach of the covenant of good faith and fair dealing, the same public policy analysis applies. In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566-72, 479 A.2d 781 (1984), the Supreme Court addressed the applicability of the implied covenant of good faith and fair dealing in the employment context. In the employment context, the implied covenant of good faith and fair dealing is "a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy." Id., 567. "Although [the Supreme Court endorses] 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 unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction. We see no reason . . . 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." (Emphasis added; internal quotation marks omitted.) Id., 572.
As to count six, a claimed violation of General Statutes § 46a-60(a)(4), the plaintiff, a Caucasian female, alleges that her supervisors made numerous "sexually offensive and racist" comments in her presence. These comments included: "how bad it would be if Senator Obama was elected president because he was black"; "why don't we get one of our Puerto Rican friends to break into the car [that was abandoned in the parking lot] and find out whose car it is"; "he [a male co-worker who had recently undergone surgery and was confined to a hospital bed] wouldn't mind being strapped to a bed, at least not for a weekend"; and, to the plaintiff, "I'm sure you get along fine with him [an African American student], especially because of his penchant for white women."
The allegations contained in count six of the plaintiff's amended complaint are insufficient, as a matter of law, to state a valid claim for retaliation pursuant to General Statutes § 46a-60(a)(4). The plaintiff fails to allege that she engaged in any protected activity taken to protest or oppose statutorily prohibited discrimination by the defendant school. The plaintiff's allegations do include a series of adverse employment actions (supervisory reprimands and her termination), however, the plaintiff fails to sufficiently allege that she protested any discriminatory practice or policy. The plaintiff has merely alleged that she was personally offended by her supervisors' comments and that she complained about those comments. Personality conflicts over off-color remarks in the workplace do not necessarily constitute a discriminatory employment practice.
It is noted that, "in the context of an ongoing employment relationship . . . individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, both formal and informal; decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance; and disciplinary or investigatory action arising from actual or alleged employee misconduct . . . [ S]uch individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like." (Emphasis added.) Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2003).
For purposes of establishing a prima facie case of retaliation, the plaintiff's complaints about the above-described comments do not constitute "protected activity" because they are not alleged to have been made in protest of a discriminatory employment practice. Keith v. Connecticut Housing Finance Authority, Superior Court, judicial district of New Haven, Docket No. CV 05 4010160 (November 21, 2005, Rodriguez, J.); see also Poach v. Doctor's Associates, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 40233906 (September 22, 2008, Zoarski, J.) ("The basis of a retaliation claim is that the plaintiff suffered an adverse employment action as a result of protesting a discriminatory policy."); Caesar v. Hartford Hospital, 46 F.Sup.2d 174 (D. Conn. 1999) (listing the following allegations as examples of discriminatory employment practices: more liberal allowances of smoking breaks for white nurse's aides than black nurse's aides; different treatment for white and black aides participating in various programs; more vigilant investigations into patient complaints alleging abuse of non-white aides).
Simply put, the plaintiff's claim fails because she has not alleged that she was terminated from her employment as a result of her having protested a discriminatory employment practice.
CONCLUSION
Accordingly, upon reconsideration, the previous ruling granting the motion for summary judgment as to counts three and six is hereby granted.