Opinion
No. FST CV 10 6004998
January 24, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (108.00)
I. FACTS
On May 11, 2010, the plaintiff, Nancy Hall-Duncan, commenced this age discrimination action against the defendant, the Bruce Museum, Inc. In the operative pleading, which is the revised complaint dated September 24, 2010, the plaintiff alleges the following facts. On December 27, 1985, the plaintiff began working for the defendant, which is located at 1 Museum Drive in Greenwich, as its art curator. In 2003, the plaintiff was promoted to the position of senior curator of art. At the time of the termination of her employment, the plaintiff was the only full-time employee in the defendant's art department and was sixty years old. The plaintiff alleges that she "was qualified for the positions assigned her, and satisfactorily performed her duties throughout her 23 1/2 year tenure, as confirmed by her high position at the museum, her promotion to the role of Senior Curator of Art, contributions to the museum which were made in her name, and the letters of recommendation [the plaintiff] received from colleagues with whom she worked at the museum, patrons of the museum, and the press."
In 2001, Peter Sutton assumed the role as the defendant's chief executive officer and executive director. The plaintiff alleges that "[d]espite the fact that [the plaintiff] successfully performed her job responsibilities at [the defendant] for over two decades . . . Sutton, through his statements and conduct, nonetheless harbored a discriminatory animus against [the plaintiff] because of her age. Specifically, the plaintiff alleges that, inter alia, Sutton: (1) made disparaging comments about older women such as the plaintiff, including referring to two older female members of the defendant's board of directors as "meddling biddies"; (2) stated that the plaintiff was "too old to do that" when the plaintiff began to move a piece of artwork that was donated to the museum; (3) indicated that the plaintiff should talk to the "young employees" when she had a technology related question because "they're good at that"; (4) rejected the plaintiff's exhibit proposals without a reasonable explanation; (5) re-assigned the plaintiff's job responsibilities to younger and less qualified employees, including a twenty-four-year-old intern; (6) issued negative performance reviews as a pretext for suggesting that the plaintiff should abandon her career with the defendant; (7) demeaned and humiliated the plaintiff in the presence of other colleagues; (8) withheld positive information about the plaintiff's performance from the defendant's board of directors such as the fact that a museum patron had donated $25,000 to the defendant in the plaintiff's name and (9) flatly denied the plaintiff's requests for salary re-evaluations.
On May 29, 2009, the plaintiff's employment with the defendant was terminated. In the meeting where the plaintiff was informed of her termination, Sutton urged the plaintiff to consider her discharge as "retirement." The stated reason for the plaintiff's termination was a staff reduction done to facilitate cost savings. According to the complaint, the elimination of the plaintiff's position was not justified by legitimate cost savings because her duties have been assumed by younger employees. The plaintiff was fired as part of what the defendant termed an institution-wide restructuring that included the elimination of four positions, including one held by another fifty-seven-year-old female employee. As a result of the alleged conduct of the defendant's agents, including Sutton, the plaintiff contends that she has experienced despair, heartache and mental anguish, as well as financial injury including substantial difficulties in resuming her professional career. Accordingly, the plaintiff's two-count revised complaint alleges claims against the defendant for violations of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60(a)(1) et seq. (CFEPA) and "willful discrimination."
On October 12, 2010, the defendant filed a motion to strike count two of the revised complaint sounding in willful discrimination, as well as a memorandum of law in support of its motion. The face of the defendant's motion states that count two is legally insufficient because "the plain language of [§ 46a-60(a)(1)] only provides a right of recovery for violation of the statute and does not provide for a separate and distinct cause of action for willful or reckless indifference." In response, on November 3, 2010, the plaintiff filed a memorandum of law in opposition to the defendant's motion. On December 2, 2010, the defendant filed a reply memorandum. The court heard argument in this matter at short calendar on December 6, 2010.
II. 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 a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. When deciding a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
In the memorandum of law in support of its motion to strike, the defendant argues that count two alleging willful discrimination should be stricken because CFEPA does not allow for a separate cause of action sounding in willful or reckless indifference. Specifically, the defendant contends that the plain language of CFEPA only provides a right of recovery under the statute, and, as a result, a willful or reckless violation of CFEPA is not a cognizable cause of action in this state. In support of this proposition, the defendant's memorandum of law only cites two Superior Court cases, and both of these cases are inapposite. The first case cited by the defendant, Commission on Human Rights Opportunities v. Hersh, Superior Court, judicial district of Hartford, Docket No. H 7605 (July 28, 2009, Gilligan, J.), is a housing discrimination case and does not interpret the scope of CFEPA. Similarly, the second case cited by the defendant, Pitts v. Carabillo, Superior Court, judicial district of Danbury, Docket No. CV 99 0334727 (May 22, 2000, Carroll, J.), also does not address the issue of whether CFEPA precludes the cause of action that the plaintiff has brought in count two.
General Statutes § 46a-60 provides in relevant part: "(a) It shall be a discriminatory practice in violation of this section (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's . . . age . . ."
Contrary to the defendant's assertion, it does not appear that the plain language of CFEPA provides that it is the exclusive remedy for an age discrimination claim.
The plaintiff responds that it is appropriate for her to bring a claim for willful discrimination because she is seeking punitive damages for the defendant's alleged violation of CFEPA. As a plaintiff must allege wilful or wanton misconduct in order to obtain punitive damages, the plaintiff contends that she has the right to bring the cause of action found in count two. The plaintiff primarily relies on Collier v. Dept. of Public Safety, Superior Court, judicial district of Middlesex, Docket No. CV 9680659 (May 3, 1999, Arena, J.) ( 24 Conn. L. Rptr. 433) to support this position. In that age discrimination case, the court awarded the successful plaintiff punitive damages because the jury found that the defendant had committed willful discrimination. Nevertheless, in Collier, the court does not mention that the plaintiff brought a separate cause of action for willful discrimination. Rather, the court determined that CFEPA itself authorized an award of punitive damages.
Consequently, none of the authorities cited by the parties actually answers the question of whether the plaintiff can state her claim for willful discrimination that is located in count two. In order to resolve this issue, the court must be mindful of the precise allegations of the revised complaint. In count one, the plaintiff brings a claim for age discrimination in violation of CFEPA. Count two incorporates all of the factual allegations of count one and only adds one additional allegation, which states that "[t]he acts of [the defendant] were committed willfully or with reckless indifference to [the plaintiff's] protected rights under CFEPA . . ." In contrast to count one, which clearly alleges that the defendant committed a statutory violation, count two appears to be a common-law claim sounding in willful discrimination. As stated on its motion, the defendant is moving to strike count two because CFEPA "only provides a right of recovery for violation of the statute and does not provide for a separate and distinct cause of action for willful or reckless indifference." The underlying allegations brought by the plaintiff are those of wrongful discharge stemming from age discrimination, and plaintiff is clearly a member of a protected class under CFEPA. Accordingly, the determinative legal issue is whether CFEPA provides the exclusive remedy for the plaintiff.
To date, it does not appear that Connecticut's appellate courts have fully addressed the issue of whether CFEPA provides the exclusive remedy for the plaintiff. "[T]he judges of the Superior Court are split with respect to this issue. On one side, judges have reasoned that [t]here is nothing in the [CFEPA] statutes indicating that the administrative remedy provided therein preempts common-law actions and recovery of damages for tort claims arising out of the conduct which also gives rise to the complaints under [the CFEPA] . . . Therefore, common law causes of action . . . are not preempted by [CFEPA] . . . In contrast, other judges have reasoned that the CFEPA provides the exclusive statutory remedy for common-law claims." (Citations omitted; internal quotation marks omitted.) Powell v. Greenwald Industries, Inc., Superior Court, judicial district of New London, Docket No. CV 095013578 (April 29, 2010, Cosgrove, J.) ( 49 Conn. L. Rptr. 762, 764-65).
In his Powell opinion, Judge Cosgrove cited the following Superior Court cases for the proposition that CFEPA does not provide the exclusive remedy for prospective plaintiffs. Brightly v. Abbott Terrace Health Center, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148584 (February 27, 2001 Rogers, J.) [ 29 Conn. L. Rptr. 102]; Delvecchio v. Griggs Browne Co., Inc., Superior Court, judicial district of New London at Norwich, Docket No. CV 118659 (April 17, 2000, Hurley, J.T.R.) ( 27 Conn. L. Rptr. 89, 91) and Cantavero v. Horizon Meat Seafood Distributors, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0152918 (April 22, 1997, Nadeau, J.) ( 19 Conn. L. Rptr. 333, 334-35). In contrast, Judge Cosgrove also noted the following cases that held that CFEPA does provide the exclusive remedy: Geysen v. Securitas Security Services, USA, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 09 5007429 (November 18, 2009, Bear, J.); Fecteau v. East Coast Lighting Equipment, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002853 (May 19, 2008, Pickard, J.) and Cintron v. Ademco Distribution, Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 0470757 (February 24, 2003, Harper, J.).
The Connecticut Supreme and Appellate Courts, however, have examined this question in the context of other employment statutes. For instance, in Burnham v. Karl Gelb, P.C., 252 Conn. 153, 745 A.2d 178 (2000), the Connecticut Supreme Court determined that this state's whistle-blower statute, General Statutes § 31-51m, provided the exclusive remedy for the plaintiff's alleged wrongful discharge in violation of the statute. As stated by the Supreme Court, "[§] 31-51m(c) provides a statutory remedy for employees who are harmed by employer conduct in violation of § 31-51m(b) . . . The existence of this statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action based on an alleged violation of § 31-51(b)." Id., 162. The Appellate Court made a similar determination in respect to § 31-51m, and clearly stated that "[a] common-law approach to a claim of wrongful discharge is barred as long as a remedy has been made available to address the particular public policy concerns." Campbell v. Plymouth, 74 Conn.App. 67, 76, 811 A.2d 243 (2002). The reason for these holdings is that in Connecticut, "[t]he 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." (Internal quotation marks omitted.) Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985).
General Statutes § 31-51m(b) provides in relevant part: "No 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, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . ."
Noting the similarities between § 31-51m and CFEPA, Judge Cosgrove has concluded that CFEPA provides the exclusive remedy in situations where the plaintiff is alleging wrongful discharge in violation of CFEPA. Judge Cosgrove stated that "[t]he 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." Powell v. Greenwald Industries, Inc., supra, 49 Conn. L. Rptr. 765. In the present case, count two alleges a willful discrimination claim stemming from the defendant's alleged violation of CFEPA. This court agrees with Judge Cosgrove's reasoning and determines that CFEPA provides the exclusive remedy for the plaintiff in this matter. See also Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 405, 717 A.2d 811 (1998) (Lavery, J., dissenting) (stating that "when an allegation is made with respect to a protected category under the Fair Employment Practices Act . . . the exclusive remedy is in the procedures established by the act, and there is no cause of action for a private lawsuit"); Murray v. Bridgeport Hospital, 40 Conn.Sup. 56, 60, 480 A.2d 610 (1984) (same); Napoleon v. Xerox Corp., 656 F.Sup. 1120, 1125 (D.Conn. 1987) (holding that "the plaintiff has an explicit state statutory remedy for the defendant's alleged misconduct under the comprehensive procedural provisions of the Connecticut Fair Employment Practices Act . . . Under these circumstances, the plaintiff may not circumvent the CFEPA by the assertion of private cause of action"); Powell v. Feroleto Steel Co., Inc., 659 F.Sup. 303, 305 (D.Conn. 1986) (stating, in an age discrimination case, that "[g]iven the statutory remedies contained in [General Statutes] § 46a-60, Connecticut's federal and state courts generally have not recognized an independent action for wrongful discharge based upon a violation of such statute").
Although this statement was made in a dissenting opinion, Judge Lavery's conclusion that a plaintiff's ability to state a cause of action under CFEPA precludes a plaintiff from bringing a common-law claim for wrongful discharge is supported by the majority's opinion in Burnham. In that case, the majority of the Appellate Court determined that the plaintiff was precluded from bringing a common-law wrongful discharge claim because she had had adequate remedy under the relevant OSHA statutes. Judge Lavery's dissent focused on the fact that he felt that the OSHA statutes did not provide the plaintiff with a sufficient administrative remedy, and, as a result, the plaintiff could bring a common-law wrongful discharge claim. The Appellate Court's majority opinion was later upheld by the Supreme Court. See Burnham v. Karl Gelb, P.C., 252 Conn. 153, 745 A.2d 178 (2000).
This court decides count two should be stricken based on the above authorities because CFEPA provides the plaintiff's exclusive remedy for her wrongful discharge claim stemming from alleged age discrimination. In reality this may be largely an academic exercise. As stated in her memorandum of law in opposition to the motion to strike, the plaintiff's primary reason for including this count was because she is seeking punitive damages. The defendant has not moved to strike the plaintiff's third prayer for relief requesting punitive damages, and in its reply memorandum, the defendant concedes that the plaintiff may be entitled to punitive damages under CFEPA. Consequently, the plaintiff may still potentially be awarded punitive damages in this matter even if count two is stricken.
III. CONCLUSION
The motion to strike count two is granted.