Opinion
No. CV 040489573
July 23, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#136)
The defendants, Canberra Industries (Canberra); Packard BioScience; Perkin-Elmer Life Sciences (Perkin-Elmer); Darren Lee (Lee); Roberta Tyska, formerly Roberta Kuhn (Kuhn); Mark Schmeizl (Schmeizl); Wayne Richardson (Richardson); Eugene Della Vecchia (Della Vecchia); Richard McKernan (McKernan); and Emery Olcott (Olcott), filed a Motion for Summary Judgment (#136), an accompanying memorandum of law *#137) and sixty exhibits on April 1, 2009. The plaintiff, Li Li, a self-represented party, filed an Opposition to Summary Judgment (#145) on August 11, 2009 consisting of "Responses to Statement of Undisputed Facts," an "Addendum: Disputes to Footnotes of Counsel's Legal Argument" and "Legal Argument for Denying Summary Judgment." The plaintiff's opposition was accompanied by forty-three exhibits (#146). The defendants filed a reply memorandum (#149) on January 29, 2010 accompanied by an additional affidavit and five additional exhibits. The court heard the matter at short calendar on March 29, 2010. For reasons more fully set forth in this Memorandum of Decision, this court grants the defendants' motion for summary judgment.
This case arises from the employment relationship between the plaintiff and Packard Instrument Company, a division of Packard BioScience, for which the plaintiff worked as an associate manager. In the operative 11-count complaint, the amended complaint dated December 31, 2008 and file-stamped January 2, 2009, (#134) the plaintiff alleges various claims arising out of this employment relationship. More specific facts will be addressed in this Memorandum as necessary.
In count one, the plaintiff asserts a "wrongful discharge" claim. In count two she alleges a breach of implied contract. In count three she pleads a breach of express contract. In count four she alleges fraud. In count five she asserts negligence. In count six she alleges a violation of her constitutional rights to free speech. In count seven she asserts a hostile work environment claim. In counts eight and nine she alleges defamation. In counts ten and eleven she alleges emotional distress claims.
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).
"[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn.App. 10, 11 n. 1, 971 A.2d 90 (2009). Nevertheless, "[t]here are no special rules authorizing a lesser standard of compliance for pro se parties. Any litigant may choose to proceed without representation, but all are bound by the same standards." Basilicato v. Dept. of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1995).
I.
The defendants move for summary judgment on count one, which alleges that the plaintiff was wrongfully discharged in retaliation for her whistleblowing of unethical business practices. First, the defendant argues that the plaintiff failed to exhaust her administrative remedies pursuant to General Statute § 31-51m. Second, the defendants argue that the plaintiff has failed to establish that her discharge was not based upon her deficient performance. The plaintiff argues that her negative performance reviews were based upon unsubstantiated opinions rather than proven facts and that she has sufficiently supported her claim.
Because the plaintiff does not allege that she contacted any external entities or persons about her company's alleged misconduct, the defendant's first argument fails. General Statute § 31-51m, the Connecticut whistleblower statute, only protects so-called `external' whistleblowing, i.e., to a public authority, as opposed to `internal' whistleblowing, i.e. within the employer's organization." Chenarides v. Bestfoods Baking, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0197877 (March 30, 2005, Hiller, J.) ( 39 Conn. L. Rptr. 90, 92).
Regarding their second argument, the defendants have met their initial burden of showing establishing through documentary evidence that the plaintiff was terminated because of poor performance. The defendants appended five negative performance reviews written by three different supervisors from a period of September 1, 1997 through May 1, 2000. Notwithstanding her claim that these reviews were unmerited, the plaintiff has not provided contradictory evidence to establish that there is a genuine issue of material fact about the reason for her discharge.
In order to avail herself of the public policy exception articulated in Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), the plaintiff must be able to establish that she was terminated, not because of poor performance, but in violation of a public policy, which in this case would be exposing unethical business practices. In Sheets v. Teddy's Frosted Foods, the Supreme Court recognized a narrowly tailored exception to the employment-at-will doctrine. "To prevail on his claim under the Sheets exception, the plaintiff has the burden of pleading and proving that his dismissal occurred for a reason violating public policy . . . Even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate in order to raise a genuine issue of fact." (Internal quotation marks omitted.) Yancey v. Connecticut Life Casualty Ins. Co., 68 Conn.App. 556, 560, 791 A.2d 719 (2002).
To dispute the proffered reason for her termination, the plaintiff alleges that in March 2000 she was asked by her supervisor, Schmeizl, to contact competitors and pretend that she was "Dr. Smith" from "State University" in order to obtain proprietary information from them. The plaintiff refused to perform the task on the ground that it "was an illegal act that constituted [f]raud, [d]eceit and [m]isrepresentation." She suggested that Schmeizl contact Packard's legal department to verify the legality of the task. He did so and received an e-mail from Kris Keegan of Packard's legal department on March 27, 2000, in which Keegan recommended against making such calls.
According to the plaintiff, Schmeizl nonetheless continued to insist that the plaintiff make the contacts with Packard's competitors; and commented negatively in her thirty-day performance review when she refused to do so. Schmeizl wrote a thirty-day performance review dated March 30, 2000 and on May 1, 2000 he wrote a sixty-day performance review. Both were, in fact, critical of the plaintiff. Della Vecchia, Kuhn and Lee were copied on the e-mail containing the thirty-day performance review, and Kuhn and Lee were copied on the e-mail containing the sixty-day performance review. Lee wrote an annual performance review for the plaintiff at the time of Schmeizl's sixty-day performance review, in which he similarly rated the plaintiff as being "unsatisfactory" and/or "need[ing] improvement." He rewrote part of the review after the plaintiff objected to its content. Subsequently, Schmeizl wrote a performance review for the plaintiff on May 31, 2000 assessing her performance as "unsatisfactory." The plaintiff's employment at Packard was then terminated on the basis of these performance reviews.
The plaintiff argues that the negative reviews were in retaliation for her refusal to violate public policy by impersonating a "Dr. Smith." But, she does not dispute that she received increasingly negative performance evaluations beginning in 1997.
In September 1, 1997, the plaintiff's first supervisor constructively criticized her performance: "Li needs to expand her job knowledge with regard to fluorescence and luminescence." In April 1998, he similarly commented that she needed to "Take more initiative to expand her knowledge of marketing . . ." In April 1998 he noted that she was "apprehensive when making decisions," and needed to "learn to take more responsibility and initiative . . ." In February 2000 a different supervisor stated that the plaintiff "is not suited for the position of Product Manager . . . If improvement doesn't happen, other disciplinary action may be taken up to and including termination." This supervisor similarly commented on Li's lack of knowledge of product lines and lack of initiative and poor communication skills. Finally, her third supervisor wrote to the plaintiff in March: "in light of the needs improvement review you received from [prior supervisor] before joining my group, it will be important that I see significant improvements over the next sixty days." Thirty days later, he sent her another poor performance review and ultimately recommended that she be terminated.
The present case is factually and legally similar to Yancy. In Yancy, the plaintiff primarily relied upon his own affidavit in objecting to the defendant's motion for summary judgment. The Appellate Court upheld the trial court's granting of the motion and concluded: "Our thorough review of the record reveals that the plaintiff has failed to present the necessary factual predicate to raise a genuine issue of fact under the Sheets exception, namely, that his dismissal occurred for a reason that violated public policy. The affidavits filed by the defendant detailed the plaintiff's deficient performance. In response, the plaintiff's affidavit, which consisted of a lengthy narrative, provided only vague generalizations concerning his dissatisfaction with the job and the defendant's alleged motive for discharging him. It did not supply the factual predicate necessary to support his contention that he was discharged for a demonstrably improper reason." Yancey v. Connecticut Life and Casualty Insurance Co., supra, 68 Conn.App. 561.
The court in the present case likewise concludes that the plaintiff's evidence is conclusory, reliant upon her own opinions rather than facts. She, therefore, is unable to provide a factual predicate for her argument that her negative performance reviews were pretextual. For this reason, the court must grant the defendants' motion for judgment on Count One. Though this court is sympathetic to the plaintiff's concerns and though the timing of her termination in connection with the "Dr. Smith" incident raises some questions, these facts, alone, are not enough for her to meet her burden regarding this motion. She must present some factual predicate for her claim that the performance reviews were not, in fact, the basis for her termination. She has failed to do so. Therefore, this court grants the defendants' motion for judgment on Count One.
II.
In the second and third counts of her complaint, the plaintiff alleges breach of contract. In the second count she claims that the Employee Handbook created an implied oral and written contract. In the third count she alternatively pleads that the Employee Handbook created an express contract which was breached. The defendants move for summary judgment on both counts on the ground that none of the documentation upon which the plaintiff relies, created a contract. The plaintiff argues in opposition that there are issues of material fact as to whether or not a contract, implied or express, was created between the parties.
In order for parties to make a contract, they must mutually assent to its conditions and its meaning. Hess v. Dumouchel Paper Co., 154 Conn. 343, 347, 225 A.2d 797 (1966). "[A]ll employer-employee relationships not governed by express contracts involve some type of implied `contract' of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working." (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13, 662 A.2d 89 (1995). Such "an implied contract of employment does not limit [however] the terminability of an employee's employment"; it "merely includes terms specifying wages, working hours, job responsibilities and the like." Id., 14. "Thus, [a]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will." (Internal quotations marks omitted.) Id.
"In Connecticut, an employer and employee have an at-will relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reasons, or no reason, at any time without fear of legal liability." (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, CT Page 15185 260 Conn. 691, 697-98, 802 A.2d 731 (2002). "[T]he default rule of employment at will can be modified [however] by the agreement of the parties . . . [T]he plaintiff [has] the burden of proving by a fair preponderance of the evidence that [the employer] . . . agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause . . . Absent a statutory warranty or definitive contract language, the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact." (Emphasis added; internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 15. Both an express contract and an implied contract depend on the actual agreement of an employer to have a contract with an employee. Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 389, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000).
An employer can ensure the absence of a contract contrary to an at-will employment relationship and "protect [itself] against employee contract claims based on statements made in personnel manuals" by "eschewing language that could be reasonably construed as a basis for a contractual promise" or by "including appropriate disclaimers of the intention to contract." (Internal quotations marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999).
In this case, the plaintiff's offer letter contains clear language that it does not constitute an express contract. Similarly, the 1995 employee handbook and the 1999 employee handbook both contain conspicuous statements establishing that they are not contracts. Further, the plaintiff signed two forms, one related to the 1995 handbook and the other related to the 1999 handbook acknowledging that the handbooks were not contracts and that her employment with Packard was "at-will" in nature.
Although the plaintiff does not dispute this evidence, she argues that she was told by a human resource representative during her first day of work that she would remain employed as long as she followed the rules contained in the handbook. She also argues that the disclaimers do not allow the defendants to change their policies or violate their rules by firing employees based upon purportedly unsubstantiated performance evaluations.
The plaintiff has not provided contradictory evidence to establish that there is a genuine issue of material fact about the parties' intent concerning the employee handbook and her at-will employee status. Her argument in opposition to the motion instead relies upon her interpretation of the offer letter and the 1995 handbook and a single oral representation by an unidentified human resources representative. This is insufficient to establish that there is a material issue of fact in dispute regarding her contract claims. See Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 732-33, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996) (noting plaintiff's breach of implied employment contract claim "relie[d] heavily on testimony by the defendant's human resource personnel that they did not randomly disregard the defendant's progressive disciplinary measures or its termination guidelines" and affirming trial court's holding that "`[t]he vague references to the company's policies in the deposition transcript of the [defendant's] human resources employees are . . . insufficient to show that [the plaintiff's] employment was anything other than at will'").
Applying the reasoning in Gaudio, this court concludes that the defendants have met their burden of proving that there are no material issues of fact in dispute regarding the contract claims and this court grants the defendants' motion on counts two and three.
III.
In the fourth count, the plaintiff alleges that one of the defendants, Lee, fraudulently misrepresented to her an offer for a job promotion, which she never received. The defendants move for summary judgment on this count on the ground that the plaintiff is unable to establish a prima facie case for fraudulent misrepresentation.
"The elements of fraudulent misrepresentation are as follows: (1) a false representation must be made as to a statement of fact; (2) the statement was untrue and known by the defendant to be untrue; (3) the statement was made to induce the plaintiff to act; and (4) the plaintiff acted on the false representation to her detriment." Dorsey v. Mancuso, 23 Conn.App. 629, 633, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991). "A fraudulent representation in law is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it." Clark v. Haggard, 141 Conn. 668, 673, 109 A.2d 358 (1954). "Where a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient; the specific acts relied upon must be set forth in the complaint." Maruca v. Phillips, 139 Conn. 79, 81, 90 A.2d 159 (1952).
"Allegations such as misrepresentation and fraud present issues of fact. Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985). Moreover, `[w]hether evidence supports a claim of fraudulent . . . misrepresentation is a question of fact.' (Internal quotation marks omitted.) McClintock v. Rivard, 219 Conn. 417, 427, 593 A.2d 1375 (1991). `It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.' (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969). `Nevertheless, it remains incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined as a matter of law, that a genuine issue of material fact exists.' (Internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 498, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992)." Armin v. White, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0275718 (March 9, 2004, Tanzer, J.).
The plaintiff has failed to present a factual basis for her claim of fraudulent misrepresentation. In her complaint she alleges: "the written email of Darren Lee of October 7, 1999 constituted a written offer and contract which Ms. Li accepted. As it turned out, the offer and contract by Darren Lee was a false representation . . . In receiving the promotional job offer, plaintiff relied upon the representation made, specifically the e-mail from Darren Lee on October 7, 1999." The content email to which the plaintiff referred is in evidence. It states:
Because of the strong overlap in applications of the MicroCount product line and the forthcoming OPUS, and the need for clear market segmentation, we would want one individual to manage the general marketing and product management efforts for the MicroCount products and OPUS. Therefore we are redefining the MicroCount Product Management position to include product management for the future OPUS line . . . We need to assign this position to you as soon as possible to ensure that we are properly prepared for the OPUS product introduction. This means you have to become involved with the project immediately. As I stated in our previous conversations, PICO cannot financially justify a person solely for the MicroCount product line due to the limited future projected revenue. You said to me during our meeting last week that you did not want to accept these new product management responsibilities associated with the OPUS project. If you refuse to take on these new duties, then you are, in effect resigning. If that is your intention, please let me or human resources know by Friday, October 8. Defendants' Ex. 13; Plaintiff's Ex. 22 at 1, 3.
The plaintiff wrote a reply to the email on October 8, 1999:
This is to confirm that I assume the new product management responsibilities as listed in your e-mail dated Oct. 7, 1999. These are more detailed descriptions of the OPUS product management responsibilities than what you had previously presented to me during our conversation last week. Therefore, I would like to have a letter from either you or HR to formalize the offer. Thanks. Defendants' Ex. 14; Plaintiff's Ex. 22 at 1.
The plaintiff argues that the subject representation was false because she never received a promotion accompanied by an increase to her benefits or her salary. However, the clear language of the email indicates that (1) Packard was redefining the MicroCount Product Management position; and (2) the plaintiff could accept or decline the redefinition. The email contains no explicit or implicit reference to a promotion, an increase in benefits of salary or a new title. Therefore, this court concludes that the plaintiff cannot establish the requisite element of falsity to support her claim. Cf. Petitte v. DSL.net, Inc., 102 Conn.App. 363, 365, 925 A.2d 457 (2007) (affirming trial court grant of summary judgment on negligent misrepresentation claim in case where letter containing later retracted employment offer was deemed not false because it explicitly said "this letter is not a guarantee of employment" and that "employment will be at-will"). Because the plaintiff is unable to fulfill all four fraudulent misrepresentation criteria, the defendants are entitled to a judgment as a matter of law, and the court grants their motion on count four of the amended complaint.
IV.
The plaintiff asserts a negligent supervision cause of action in count five. The defendants move for summary judgment on this count on the ground that the plaintiff has failed to allege that the individual defendants owed her a duty of care or that she was harmed by tortious conduct. The plaintiff counters with the argument that the individual defendants are responsible for the acts of their underlings; and there are genuine issues of material fact in dispute as to whether or not the tortious conduct she alleges was foreseeable and whether or not the alleged tortfeasors acted within the scope of their employment.
In her brief, the plaintiff argues that Olcott, McKernan and Della Vecchia were negligent because they were the "most responsible person[s]" of Packard BioScience, Packard and Packard's marketing department, respectively. Plaintiff's Opposition to Summary Judgment, Responses to Statement of Undisputed Facts 18, Response to Statement 26. She further alleges that they were "aware" of their employees' acts and omissions and bore "responsibility and liability" for such acts and omissions by virtue of their official positions. Id.; Plaintiff's Opposition to Summary Judgment, Legal Argument for Denying Summary Judgment 52.
The law is that "an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an . . . officer commits or participates in the commission of a tort, whether or not he acts on behalf of his . . . corporation, he is liable to third persons injured thereby." Scribner v. O'Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975). The plaintiff has not alleged that Olcott, McKernan or Della Vecchia personally engaged in tortious conduct or that they participated in others' tortious conduct, other than by being "aware" of such conduct and, in Della Vecchia's case, signing Lee and Schmeizl's May 2000 performance reviews. The parties' exhibits likewise lack evidence that Olcott, McKernan and Della Vecchia engaged or participated in tortious conduct. Therefore, there is no genuine issue of material fact regarding Olcott, McKernan and Della Vecchia's conduct, and they are entitled to a judgment as a matter of law because the plaintiff's negligence allegations are based only upon their official positions.
The plaintiff and the defendants identify the allegedly tortious conduct at issue for Kuhn, Lee, Richardson and Schmeizl as the inappropriate sexual jokes and remarks made by some of the plaintiff's co-workers; Schmeizl's request that the plaintiff contact competitors and pretend to be "Dr. Smith" from "State University;" and the plaintiff's negative performance reviews. The plaintiff does not allege that Kuhn, Lee, Richardson and Schmeizl supervised the employees involved in the request and the negative performance reviews. She instead alleges that they were among the employees involved in the request and the negative performance reviews. Therefore, the only tortious conduct that could be the basis for the plaintiff's negligent supervision cause of action against Kuhn, Lee, Richardson and Schmeizl is the inappropriate sexual jokes and remarks made by some of the plaintiff's co-workers
Because there are no genuine issues of material fact in dispute, the court will now address whether the defendants are entitled to judgment as a matter of law. In claiming that Packard employees made inappropriate sexual jokes and remarks, the plaintiff has identified Bob Miller, a sales representative based in the Washington, D.C. area; two employees who were part of Packard's business development group; a secretary who worked for Packard's sales department; and other employees whose names and/or positions she cannot remember. Defendants' Ex. 7 at 18, 25, 27; Defendants' Ex. 26 at 4; Plaintiff's Ex. 3 at 4; Plaintiff's Ex. 19 at 20-22, 26-28. The plaintiff has not identified any employees who worked in Packard's human resources department with Kuhn, the MicroCount product group with Lee and Schmeizl or the FSA, Cyclone and Instant Imager product group with Richardson.
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). A "plaintiff must plead and prove that she suffered an injury due to the defendant's failure to supervise an employee whom the defendant had a duty to supervise." Id. "Consistent with the Appellate Court's decision in Seguro, Superior Court decisions have required plaintiffs alleging negligent supervision to plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury." (Internal quotation marks omitted.) Dumas v. Price Chopper, Inc., Superior Court, judicial district of Windham, Docket No. CV 09 5004896 (March 31, 2010, Riley, J.) (citing cases).
"[T]he determination of whether a duty exists between individuals is a question of law . . . Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty . . . The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Internal quotation marks omitted.) Seguro v. Cummiskey, supra, 82 Conn.App. 192. The Seguro court defined the test to determine foreseeability with the question: "Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotations marks omitted.) Id., 194.
Based on the evidence before it, the court concludes that the plaintiff cannot demonstrate that any of the employees to whom she has attributed the inappropriate sexual jokes and remarks were within Kuhn, Lee, Richardson or Schmeizl's chain of command, such that they could have exercised their supervisory authority with due care to prevent the harm that she suffered. Nor has the plaintiff pleaded facts to demonstrate that her employers had been put on notice about these inappropriate remarks and jokes. Therefore, the plaintiff's negligent supervision cause of action against the defendants cannot survive the present motion. Similarly, the plaintiff has not presented facts upon which one can conclude that anyone with supervisory responsibilities had knowledge ahead of time or should have had knowledge ahead of time of the bad behavior or the propensity for bad behavior of which she complains. The court accordingly grants the motion on count five of the amended complaint.
V.
In the sixth count of her complaint, the plaintiff claims that she was terminated, wrongfully, because she exercised her constitutional rights to free speech by criticizing her co-workers and supervisors for engaging in illegal business practices. The defendants move for summary judgment on this count for the same reason they requested it for count one: the plaintiff has failed to establish that she was not terminated based upon her poor performance reviews. Again, the plaintiff counters that her performance reviews were not based upon the truth.
General Statutes § 31-51q provides in relevant part: "Any employer . . . 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 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge . . ."Without proof of a causal connection, there [is] no compliance with the requirement in § 31-51q of discipline or discharge on account of the exercise by [an] employee of rights guaranteed . . . by the United States Constitution . . . or the constitution of the state." (Internal quotation marks omitted.) D'Angelo v. McGoldrick, 239 Conn. 356, 360, 685 A.2d 319 (1996).
Again, there is no genuine issue of material fact about the basis for the plaintiff's discharge. As the court concluded in its analysis of the plaintiff's wrongful discharge claim, the defendants' exhibits thoroughly document deficiencies with the plaintiff's performance. The plaintiff's legal conclusions, opinions and unsupported factual assertions are insufficient to demonstrate that she was discharged on any other basis, including her criticisms of her co-workers and her supervisors. Therefore, the plaintiff is unable to state a cause of action under § 31-51q, because she is unable to prove the causal connection between her exercise of her free speech right and her discharge. See Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 845, 888 A.2d 104 (2006). Because of the plaintiff's inability to state a cause of action under § 31-51q, the defendants are entitled to a judgment as a matter of law, and the court accordingly grants their motion on count six of the amended complaint.
Because the plaintiff cannot meet the causation requirement of § 31-51q, the court need not address whether the plaintiff's criticisms qualify as constitutionally protected free speech or whether they interfered with her job performance or her relationship with Packard.
VI.
The defendants move for summary judgment on count seven on the ground that the plaintiff has not exhausted the administrative remedy for claims of discriminatory employment practices provided and required by the Connecticut Fair Employment Practices Act (the Act), General Statutes § 46a-60 et seq. The plaintiff objects to the motion by arguing that she is not required to exhaust the administrative remedy provided by the Act because it is inadequate in that does not allow for the recovery of attorneys fees, emotional distress damages and punitive damages, all of which she seeks in the present action. For reasons explained below, this court finds the defendants' position meritorious.
The plaintiff makes three other arguments in objection to the motion. First, she argues that the Act is not the exclusive means by which she can claim and seek damages for sexual harassment. The court rejects this argument because the Supreme Court has determined: "Read in its entirety, the [Act] not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the CHRO . . . It is the CHRO that is charged with the primary responsibility of determining whether discriminatory practices have occurred and what the appropriate remedy for such discrimination must be." (Citation omitted; internal quotation marks omitted.) Commission on Human Rights and Opportunities v. Truelove Maclean, Inc., 238 Conn. 337, 356, 680 A.2d 1261 (1996). Second, the plaintiff argues that the language in General Statutes § 46a-82, which provides the process for pursuing the administrative remedy at issue, is not mandatory and therefore allows her to bring her cause of action directly to the Superior Court. The court rejects this argument because it disregards General Statutes §§ 46a-100 and 46a-101, which provide that a plaintiff must file a complaint with and obtain a release from the commission on human rights and opportunities before pursuing his or her employment discrimination cause of action in the Superior Court. Finally, the plaintiff argues that the administrative remedy at issue violates her right to due process because it does not allow for the recovery of attorneys fees, emotional distress damages and punitive damages or provide for a jury trial. The court rejects this argument. As the Supreme Court has noted: "The [s]tate may erect reasonable procedural requirements for triggering the right to an adjudication . . ." (Internal quotation marks omitted.) Rogers v. Commission on Human Rights and Opportunities, 195 Conn. 543, 548, 489 A.2d 368 (1985).
Section 46a-60(a) provides in relevant part: "It shall be a discriminatory practice in violation of this section . . . (4) For any . . . employer . . . to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory practice . . . (8) For an employer, by the employer or the employer's agent . . . to harass any employee . . . on the basis of sex. `Sexual harassment' shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment."
General Statutes § 46a-82(a) provides in relevant part: "Any person claiming to be aggrieved by an alleged discriminatory practice . . . may . . . make, sign and file with the commission [on human rights and opportunities] a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission." General Statutes § 46a-100 in turn provides that a plaintiff with an employment discrimination cause of action may bring it in the Superior Court if, inter alia, he or she has first filed a complaint pursuant to § 46a-82: "Any person who has timely filed a complaint with the [c]ommission . . . in accordance with [§] 46a-82 and who has obtained a release from the commission in accordance with [General Statutes §§] CT Page 15193 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . ." Section 46a-101(a) further provides that a plaintiff with an employment discrimination cause of action must receive a release from the commission before he or she brings an action in the Superior Court under § 46a-100: "No action may be brought in accordance with [§] 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section."
In accordance with this statutory scheme, the Supreme Court has held that a plaintiff who alleges employment discrimination and sexual harassment in violation of § 46a-60 et seq. must first procure the statutorily required release from the commission before commencing an action in the Superior Court. Brittell v. Dept. of Correction, 247 Conn. 148, 161, 717 A.2d 1254 (1998). This holding is consistent with the exhaustion of administrative remedies doctrine, which provides that "a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of the exhaustion of that remedy, the action must be dismissed." (Internal quotations marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). The plaintiff in the present case has never filed a complaint with the commission or any other public body alleging the facts she claims support her claims.
The plaintiff's argument that the doctrine of exhaustion does not apply in this case because of inadequacy is without merit. Previously, there had been a split of authority in among trial courts as to whether or not exhaustion of remedies is required if the relief sought goes beyond that which an agency can give. See Hayes v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV. 96039356 (May 10, 2010, Devlin, J.) ( 30 Conn. L. Rptr. 165) ("The Superior Court decisions have taken three approaches to this issue. Some trial courts have ruled that exhaustion of remedies with the [commission] is not required where a plaintiff, as in the present case, seeks compensatory and punitive damages which are unavailable through the administrative process . . . A second approach allows the plaintiff to pursue an independent action in the Superior Court so long as the plaintiff has made a `good faith' attempt to have the claim resolved by the [commission] . . . Finally, a third approach construes the language of . . . §§ 46a-100 and 46a-101(a) as mandating that a plaintiff file a complaint with the [commission] and [obtain] a release to sue before initiating a private cause of action."). The court in Hayes adopted the third approach, which decision was upheld on appeal. Hayes v. Yale-New Haven Hospital, 82 Conn.App. 58, n. 2, 84 A.2d 616 (2004). The appellate court decision in Hayes resolved the split among the trial courts and made clear that a claimant must first file a complaint with the commission before initiating a private action.
This court is persuaded that the plaintiff had to at least file a complaint with CHRO and obtain a release before initiating this action. The plaintiff demonstrated no effort to comply with the statute and is, instead, attempting to bypass the administrative remedy provided by law. She cannot now claim the futility exception to the exhaustion doctrine. Therefore, this court lacks subject matter jurisdiction over the plaintiff's claims asserted in count seven. For this reason, this court grants the defendants' motion for summary judgment with regard to the seventh count.
VII.
In the eighth count of the amended complaint, the plaintiff alleges that defendants (Lee, Richardson and Schmeizl) defamed her by making false statements in her performance reviews which were subsequently published to "other third party managers and performance reviewers." The defendants move for summary judgment on two grounds: the subject communications and performance reviews are protected by a qualified privilege; and the plaintiff fails to make a prima facie case for intracorporate defamation because she cannot prove that anybody other than her former managers and members of Packard's human resources department had access to her performance reviews. The plaintiff objects to the motion by arguing that the defendants acted with actual malice or malice in fact when they wrote the negative performance reviews; and that there is a genuine issue of material fact about whether the defendants knew that the defamatory statements were false.
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case for defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Citation omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). Intracorporate communications can constitute publication of a defamatory statement. Torosyan v. Boehinger Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 28 ("the statement about the plaintiff had been communicated among the plaintiff's supervisors and had been included in the plaintiff's personnel file").
"[C]ommunications between managers regarding the review of an employee's job performance and the preparation of documents regarding an employee's termination are protected by a qualified privilege. Such communications and documents are necessary to effectuate the interests of the employer in efficiently managing its business." Id., 234 Conn. 29. "When considering whether a qualified privilege protects a defendant in a defamation case, the court must resolve two inquiries . . . The first is whether the privilege applies, which is a question of law . . . The second is whether the applicable privilege nonetheless has been defeated through its abuse, which is a question of fact . . ." (Citations omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009).
"As a general matter, a qualified privilege in a defamation case may be defeated if it can be established that the holder of the privilege acted with malice in publishing the defamatory material . . . [The Supreme Court] has held that malice is not restricted to hatred, spite or ill will against a plaintiff, but includes any improper or unjustifiable motive . . . Consistent with this broad view, for more than 100 years, [the Supreme Court] has concluded that a qualified privilege is lost upon a showing of either actual malice, i.e., publication of a false statement with actual knowledge of its falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 630-31.
"`If a defendant shows entitlement to the privilege, it will be presumed that the communication, though defamatory, was made in good faith and without malice in fact . . . Thus, once an occasion of privilege is found, it is plaintiff's burden to rebut the presumption of good faith . . . The plaintiff is required to come forward with solid circumstantial evidence of malice to overcome summary judgment.' Kelly v. Meriden, 120 F.Sup.2d 191, 198-99 (D.Conn. 2000)." Bickford v. Phoenix Life Ins. Co., supra, Superior Court, Docket No. CV 04 4001177. "Although the existence of malice is an issue that must be determined by the trier of fact, the plaintiff, to defeat summary judgment, [bears] the burden of presenting a factual predicate for his contention that the [defendant's] actions were taken with malice . . . In other words, the plaintiff [has] to be able to point to facts, which, when taken in a light most favorable to the plaintiff's position, could be found by a trier of fact to constitute malice.' Chadha v. Shimelman, 75 Conn.App. 819, 831, CT Page 15196 818 A.2d 789, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003)." Cassidy v. Hartford Financial Services Group, supra, Superior Court, Docket No. CV 05 4009159.
Pursuant to the applicable Connecticut law, the defendants' statements in the plaintiff's performance review are entitled to qualified privilege. Therefore, the only issue remaining is whether or not the plaintiff has presented sufficient evidence of malice. The court finds that the plaintiff has presented no such evidence to support her arguments. She provides no factual support for her argument that Lee and Schmeizl "had a strong motive and grudge against Plaintiff for making them aware of their improper and illegal actions." Plaintiff's Opposition to Summary Judgment, Legal Argument for Denying Summary Judgment 46-47. Instead, she relies upon conclusory statements and her accounts in her May 23, 2006 deposition of her conflicts with Lee, Richardson and Schmeizl. Even when viewed in the light most favorable to the plaintiff, the evidence only shows that Lee, Richardson and Schmeizl disagreed with the plaintiff and may not have liked her, not that they were maliciously motivated to defame her. The evidence, therefore, is factually insufficient to show that Lee, Richardson and Schmeizl may have written the negative performance reviews with actual knowledge of their falsity, in reckless disregard for their truth, or with bad faith or improper motive. The defendants are therefore entitled to a judgment as a matter of law because they can claim a qualified privilege with respect to the negative performance reviews. Accordingly, the court grants the defendants' motion on count eight of the amended complaint.
VIII.
In the ninth count of the amended complaint, the plaintiff alleges that the defendants defamed her because employers with whom she interviewed after she was terminated at Packard did not offer her positions when she allowed them to contact Packard for reference purposes. The defendants move for summary judgment on the ground that the plaintiff cannot make a prima facie case for defamation because she has admitted that she does cannot establish that the defendants ever published defamatory statements to the potential employers.
The plaintiff concedes that she does not have evidence that any defamatory statements were made by the defendants to prospective employers. But, she argues that she does not need such proof. This is incorrect. Because the plaintiff is unable to fulfill all of the requirements to support a claim for defamation, the defendants are entitled to a judgment as a matter of law. The court accordingly grants their motion on count nine of the amended complaint.
IX.
In the tenth count of the amended complaint, the plaintiff alleges that the defendants' conduct was extreme and outrageous; that they either intended, knew or should have known that their conduct would cause emotional distress to the plaintiff; and that the plaintiff has suffered "severe emotional distress and related physical distress requiring medical treatment" because of the defendants' conduct. The plaintiff does not specify the conduct upon which she bases the claim other than by describing it as the "foregoing conduct" in the amended complaint. The defendants move for summary judgment on the ground that their conduct was neither "extreme" nor "outrageous."
"In order for the plaintiff to prevail in a case for liability under . . . [the 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 quotations marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991). "All four elements must be established to prevail on a claim for intentional infliction of emotional distress." Muniz v. Kravis, 59 Conn.App. 704, 708-09, 757 A.2d 1207 (2002).
"[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"Liability [for intentional infliction of emotional distress] 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!'" Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004). "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." Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 19, 597 A.2d 846 (1991). "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." Appleton v. Board of Education of Stonington, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
There is no genuine issue of material fact in the present case about whether the subject conduct was "extreme and outrageous." While the alleged conduct may have been distasteful, mean-spirited or even quite rude, it does not rise to the level of extreme and outrageous, even when viewed in the light most favorable to the plaintiff.
". . . [I]ndividuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like. Thus, it is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. There are few things more central to a person's life than a job, and the mere fact of being demoted or denied advancement may be extremely distressing. That is simply an unavoidable part of being employed." Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002).
The plaintiff in Perodeau claimed negligent infliction of emotional distress, not intentional infliction of emotional distress. The Supreme Court's discussion of the effect of work-place factors on distress on an employee is nonetheless relevant to the instant matter, in which the plaintiff claims intentional infliction of emotional distress.
Because the defendants' conduct is not "extreme and outrageous" as a matter of law, the court grants the defendants' motion on count ten of the amended complaint.
X.
The eleventh count of the amended complaint is identical to the tenth count, except that the plaintiff also alleges that the defendants "should have realized that the aforementioned conduct was unreasonable and involved an unreasonable risk of causing emotional distress and related physical distress to the plaintiff." The defendants move for summary judgment on the ground that a plaintiff in an employment-related action can only claim negligent infliction of emotional distress when the conduct that causes the emotional distress occurs during the plaintiff's termination.
In Perodeau v. Hartford, supra, 259 Conn. 762-63, the Supreme Court held that an employer "may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment."
The plaintiff does not allege that the defendants' conduct during her termination was wrongful. In fact, none of the factual allegations in the amended complaint reference the defendants' conduct during the plaintiff's termination, which occurred on May 31, 2000 and June 1, 2000. See Defendants' Ex. 22 and 23; Plaintiff's Ex. 18 and 37. The factual allegations in the amended complaint instead focus upon the defendants' conduct during her employment and the contents of the negative performance reviews.
The court therefore concludes that the defendants are entitled to a judgment as a matter of law because the plaintiff fails to establish that her claims arise from conduct which took place during her termination. Accordingly, the court grants the motion for summary judgment on count eleven of the amended complaint.
For all the foregoing reasons, this court grants the defendants' motion for summary judgment on all counts.