Opinion
FSTCV126013930S.
12-12-2012
Claudia CORTAZAR v. STAPLES THE OFFICE SUPERSTORE et al.
UNPUBLISHED OPINION
GENUARIO, J.
This action arises out of an employment relationship which ended in the plaintiff's termination. The plaintiff alleges in nine counts certain tortious and discriminating conduct on the part of her employer and her supervisor. The defendants' have filed this motion to strike counts two, four, five, six, eight and nine of the complaint.
FACTS
The plaintiff filed a nine-count complaint against the defendants, Staples the Office Superstore East, Inc. (Staples), and Christopher Zottoli (Zottoli). In that complaint, the plaintiff alleges the following facts. In August 2009, the plaintiff (a Staples employee) was transferred to Staples Greenwich, Connecticut location, where she worked under the supervision of Zottoli. Zottoli subjected the plaintiff to the following harassment: he, in front of coworkers and others, frequently made reference to the plaintiff having " big boobs" and " a big ass"; consistently told the plaintiff when he needed to use the restroom and for her to " think about it"; frequently told the plaintiff something to the effect of " my ass is itchy, can you scratch it"; and inappropriately touched the plaintiff several times— for example, he massaged her shoulders and neck and pressed his body up against her. The plaintiff made Zottoli aware that his conduct was unwelcomed, but this did not prevent the behavior. The plaintiff also told Staples' assistant managers about Zottoli's conduct, and at least two of the assistant managers witnessed the conduct; nevertheless, no prompt, effective remedial measures were taken.
Count one— hostile work environment under General Statutes § 46a-60; count two— gender discrimination under § 46a-60; count three— retaliation under § 46a-60; count four— hostile work environment under § 46a-58; count five— gender discrimination under § 46a-58; count six-retaliation under § 46a-58; count seven— assault; count eight— intentional infliction of emotional distress; count nine— negligent infliction of emotional distress.
In spring 2010, Zottoli was temporarily transferred to another location. When he returned, however, the inappropriate conduct worsened. For example: Zottoli yelled at the plaintiff unjustifiably; scheduled the plaintiff to work weekends despite known family obligations; threatened the plaintiff with the loss of her job; ordered the plaintiff to expose her breasts to him; grabbed the plaintiff during a staff meeting, pulled her close and stated " my ass is too good for you"; and followed the plaintiff into the locker area in the back of the store, repeating " my ass is too good for you" and stating that he had seen the plaintiff's cell phone containing naked pictures of her.
After the incident in the locker room, the plaintiff immediately left for lunch. Upon her return, another assistant manager accused the plaintiff of improperly taking a customer's cell phone out of the store. The assistant manager disregarded the plaintiff's explanation and sent the plaintiff home. The plaintiff returned to work the next week. At the end of that week, the plaintiff was called into a meeting with, among others, the general manager. Although the plaintiff attempted to explain Zottoli's harassment and discrimination, the general manager immediately dismissed her claims and terminated her employment.
The plaintiff also notes that she performed the essential duties and responsibilities of her job in at least a satisfactory manner. In addition, on February 22, 2011 the plaintiff filed charges of discrimination with the Connecticut Commission on Human Rights and Opportunities (CHRO). The CHRO issued a release of jurisdiction notice on March 21, 2012. The plaintiff's complaint was filed within ninety days from the date of that release.
The defendants filed this motion to strike counts two, four, five, six, eight, and nine of the complaint on the following grounds: (1) count two does not set forth factual circumstances from which a discriminatory motivation could be inferred; (2) counts four, five, and six may not be brought because there is no private cause of action under General Statutes § 46a-58; (3) count eight does not allege conduct that is extreme and outrageous, and the plaintiff does not identify emotional or severe emotional distress; and (4) count nine does not allege that the termination process, itself, was unreasonable. The defendants have submitted a memorandum of law in support of the motion. The court observes that the plaintiff has filed nothing in response.
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).
" 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). " 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.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). This court takes " the facts to be those alleged in the complaint ... and ... construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Coe v. Board of Education, supra, at 116-17.
Count II
Sections 46a-60(a)(1) states in relevant part: " It shall be a discriminatory practice in violation of this section ... [f]or an employer ... to discriminate against [any] individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex ..." In determining what constitutes " discrimination, " the Connecticut Supreme Court has stated, " Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws." Curry v. Allen S. Goodman, Inc ., 286 Conn. 390, 407, 944 A.2d 925 (2008). See also Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998) (" [t]he language of the Civil Rights Act is analogous and substantially similar [to General Statutes § 46a-60(a)(1) ], and our Supreme Court has concluded that the two statutes were intended to be coextensive.")
Procedurally, under the U.S. Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the employee must first make a prima facie case of discrimination. Id., at 802. Then, the employer may rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision. Id., at 802-03. Finally, the employee must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias. Id., at 804.
In order to establish a prima facie case of discrimination, the plaintiff must prove that, " (1) [s]he [was] in the protected class; (2)[s]he was qualified for the position; (3)[s]he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 705-06, 900 A.2d 498 (2006). " To meet the fourth prong of that prima facie showing, a female employee must establish that she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred ... In other words, the female employee must show that in all material respects, she was similarly situated to a male employee, but was treated differently on the basis of her gender." (Citation omitted; internal quotation marks omitted.) United Technologies v. Commission on Human Rights & Opportunities, 72 Conn.App. 212, 226, 804 A.2d 1033, appeal denied, 262 Conn. 920, 812 A.2d 863 (2002).
Construing the complaint in the manner most favorable to the plaintiff including reasonable inferences that can be implied from the pleaded facts, as the court must, Coe, supra, the court concludes that the nature of the alleged wrongful conduct is such that it could only have been directed toward a female employee and that the conduct that the plaintiff was exposed to would not have been directed to a male employee. These allegations are broad enough to satisfy the fourth element of the Jackson test. Accordingly the motion to strike count II is denied.
Count IV, V and VI
Section 46a-58 states in relevant part: " (a) It shall be a discriminatory practice in violation of this section for any person to subject ... any other person to the deprivation of any rights ... on account of ... sex ... (e) Any person who violates any provision of this section shall be guilty of a class A misdemeanor, except that if property is damaged as a consequence of such violation in an amount in excess of one thousand dollars, such person shall be guilty of a class D felony." General Statutes § 46a-58. " In recent years, on several occasions, courts of this state have held that § 46a-58 does not give rise to a private cause of action." Batiste v. Soundview Medical Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 065001278 (March 25, 2008, Gilardi, J.) (citing Alungbe v. Board of Trustees of Connecticut State University, United States District Court, Docket No. CV0503 (D.Conn, September 4, 2003); Garcia v. St. Marys Hospital, 46 F.Supp.2d 140 (D.Conn.1999)).
" Section 46a-100 does allow the plaintiff to bring a private cause of action once he has obtained a release from the Connecticut Commission on Human Rights and Opportunities, but nowhere in that section does it specifically allow the plaintiff to bring a private cause of action under § 46a-58. The court interprets the statute to mean that, after obtaining his release, the plaintiff may bring a private cause of action but should base it on the underlying claims that the plaintiff has already alleged in this complaint." Id.
In the present case, the plaintiff attempts to bring a private cause of action under § 46a-58. This is impermissible because, as discussed above, § 46a-58 does not give rise to a private cause of action. In addition, although the plaintiff alleges that she obtained a release from the CHRO, this still does not allow her to bring a separate action under § 46a-58; the release merely allows her to bring a private cause of action based on the underlying claims already alleged in the complaint. Accordingly, the defendants' motion to strike counts IV, V and VI is granted.
Count VIII
" In order for the plaintiff to prevail in a case for liability under ... [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Peytan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).
" Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ... Only where reasonable minds disagree does it become an issue for the jury." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104 (2006). " Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘ Outrageous!’ ... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
" A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." Craddock v. Church Community Supported Living Association, Superior Court, judicial district of Hartford, Docket No CV 990592711 (November 13, 2000, Hennessey, J.). Some courts hold that is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to establish the tort of intentional infliction of emotional distress [, ] ... other courts appear to take a more liberal view ..." Guccione v. Paley, Superior Court, judicial district of Litchfield, Docket No. CV 05 40029435 (June 14, 2006, Trombley, J .).
Though far from a bright line distinction, in general, courts have been more apt to find sufficient allegations of outrageous conduct when that conduct involves violence, the threat of violence, or racial, ethnic, sexual, or religious slurs. See, e.g. Lamothe v. Russell, Superior Court, judicial district of Fairfield, Docket No. CV 074022729 (March 25, 2009, Bellis, J.) (47 Conn. L. Rptr. 450) (supervisor constantly belittled, berated, and screamed at the plaintiff, constantly mocked plaintiff by calling her fat, threw objects at or near plaintiff, and, on at least one occasion in front of others, grabbed a cigarette out of plaintiff's mouth and/or hands, while screaming at her); Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72) (owners subjected plaintiff to constant ethnic slurs, sexually offensive comments, sexually offensive pictures placed on plaintiff's computer, and insulting comments on his sexual preference).
On the other hand, the following cases have found insufficient allegations of outrageous conduct: Majewski v. Bridgeport Board of Education, Superior Court, judicial district of Fairfield, Docket No CV 03 0406893 (January 20, 2005, Arnold, J.) (plaintiff alleged that supervisor hugged and kissed plaintiff, discussed sexual interests, suggested meeting socially after work resulting in a series of adverse employment actions); Delaney v. Institute of Living, Superior Court, judicial district of Middlesex, Docket No. CV 020097157 (June 18, 2002, Shapiro, J.) [ 32 Conn. L. Rptr. 336] (supervisor regularly subjected plaintiff to hostile glances, abusive language and contemptuous behavior); Jefress v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 960386866 (August 28, 1997, Silbert, J.) (defendants subjected plaintiff to " a continuous pattern of harassment, humiliation and degradation").
In this procedural context the court will decline to hold that a pattern of alleged sexually offensive conduct including, inter alia, a male supervisor ordering a female subordinate to expose her breast to him, cannot as a matter of law constitute such extreme and outrageous conduct sufficient to support a cause of action for intentional infliction of emotional distress.
Accordingly, the defendants' motion to strike count VIII is denied.
Count IX
To prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove: " (1) the defendant'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 defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). For employment cases, the Supreme Court has held that a claim for negligent infliction of emotional distress may not be maintained for " conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Perodeau v. Hartford, 259 Conn. 729, 762-63, 792 A.2d 752 (2002).
Although Perodeau concerned the liability of an individual defendant, the courts have repeatedly held that the reasoning applies equally to corporate defendants. See Brunson v. Bayer Corp., 237 F.Supp.2d 192, 208 (D.Conn.2002).
In determining what constitutes unreasonable conduct in the termination process, courts have generally held that a termination involving inconsiderate, humiliating, or embarrassing action is unreasonable. See Leniart v. C & S Distributors, Inc., Superior Court, judicial district of Hartford, Docket No. CR 92 516354 (January 21, 1994, Corradino, J.). " The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress." Parsons v. United Technologies Corp., 243 Conn. 66, 89-90, 700 A.2d 655 (1997). In addition, terminations occurring in private meetings are generally not considered unreasonable. See id. (private meeting announcing an immediate dismissal, followed by a public escort from the premises not unreasonable). Failing to respond to employee complaints is also not considered unreasonable. See Miner v. Cheshire, 126 F.Supp.2d 184, 198-99 (D.Conn.2000).
In the present case, the plaintiff did not allege any facts to suggest that the termination process, itself, was unreasonable. Specifically, the termination occurred in private, and the plaintiff does not allege that the process was inconsiderate, humiliating, or embarrassing. As discussed, the fact that the termination may have been based on an improper motive, or that Staples failed to respond to her harassment claims, is irrelevant. Because the termination process, itself, was not unreasonable the plaintiff has not alleged the necessary elements of this cause of action.
Moreover, the plaintiff has failed to allege another essential element of negligent infliction of emotion distress. The plaintiff has failed to allege that the emotional distress was severe enough that it might result in illness or bodily harm. Carrol, supra. As this essential allegation is lacking the defendants' motion to strike count IX is granted.
Summary
For all of the above reasons the defendants' motion to strike counts four, five, six and nine is granted. The defendants' motion to strike counts two and eight is denied.