Opinion
No. HHB CV 05 5000278
August 10, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE #105
I BACKGROUND
On November 22, 2005, the plaintiff, Darlene Roman, filed a revised complaint against the defendants, the Department of Corrections (DOC), Moses Gonzalez (Gonzalez), the estate of Douglas Bernier, Sr. (Bernier's estate) and Rachel Bernier, the administrator of Bernier's estate, alleging the following causes of action: (1) count one for employment discrimination in violation of General Statutes § 46a-60 against the DOC, Gonzalez in his individual and official capacities, Bernier's estate for actions and inactions that occurred while Douglas Bernier, Sr. (Douglas Bernier or Douglas Bernier, Sr.) was still alive acting in his individual and official capacities and Rachel Bernier in her official capacity as the administrator of Bernier's estate; (2) Count two for aiding and abetting in violation of General Statutes § 46a-60(a)(5) against Gonzalez in his individual and official capacities, as well as Bernier's estate for actions that occurred while Bernier was still alive acting in his individual and official capacities; and (3) count three for intentional infliction of emotional distress against Gonzalez in his individual and official capacities, as well as Bernier's estate for actions that occurred while Bernier was still alive and acting in his individual and official capacities. The plaintiff's claims arise out of statements made by Douglas Bernier, the plaintiff's co-worker, while the plaintiff was working at the DOC under the supervision of Gonzalez.
The plaintiff filed the original complaint on September 8, 2005.
The revised complaint alleges that on several occasions, Douglas Bernier verbally harassed the plaintiff by calling her names, such as "bitch" and "fucking tramp," and telling her to "shut the fuck up." The plaintiff also alleges that on at least one occasion, such comments were made in front of inmates.
The complaint also alleges that prior to bringing the action in Superior Court, the plaintiff has exhausted any and all administrative remedies available to her, including a claim before the Commission on Human Rights and Opportunities (CHRO), the Equal Employment Opportunity Commission (EEOC). It also alleges that the plaintiff has received a right to sue letter and a release of jurisdiction from both the EEOC and the CHRO.
On December 7, 2005, the defendants collectively filed a motion to strike, accompanied by a memorandum of law, requesting that the court strike the following counts from the complaint: (1) count one (employment discrimination) against Douglas Bernier in his individual capacity; (2) count three (intentional infliction of emotional distress) against Moses Gonzalez in his individual capacity; (3) the plaintiff's claim for punitive damages; (4) the plaintiff's claim for a jury trial on the employment discrimination claim under § 46a-60 raised against the state. Thereafter, on February 16, 2006, the plaintiff filed an objection to the motion to strike, supported by a memorandum in opposition. Oral argument was held before the court on April 17, 2006.
The motion to strike as filed by the plaintiff sought to strike additional counts, however, prior to short calendar argument the parties were able to arrive at an agreement on several of the issues set forth in the motion and accompanying memorandum. Accordingly, the court's memorandum of decision only addresses the counts still at issue.
II STANDARD OF REVIEW
"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). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
"It 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.) Commissioner of Labor v. C.M.J. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied; 252 Conn. 950, 748 A.2d 299 (2000). "Moreover, [the court] note[s] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Commissioner of Labor v. C.M.J. Services, Inc., supra, 268 Conn. 292.
III DISCUSSION A EMPLOYMENT DISCRIMINATION
The defendants move to strike the first count of the plaintiff's complaint on the ground that General Statutes § 46a-60(a)(8) imposes liability on employers, not individual employees, and, therefore, the cause of action as alleged against Douglas Bernier in his individual capacity is insufficient as a matter of law. The plaintiff did not directly address this issue in her brief or at oral argument.Based on the allegations as set forth in count one of the complaint, there are two subsections of § 46a-60 that are potentially applicable to the present cause of action: § 46a-60(a)(1) and (a)(8). Section 46a-60(a) provides in relevant part: "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 race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . . (8) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member 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 (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (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." "`In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . .' General Statutes § 1-1(a). `To ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term.' . . . State v. Rivera, 250 Conn. 188, 200 n. 12, 736 A.2d 790 (1999). The dictionary defines the word `employer' to mean `[o]ne who employs, esp. for wages or salary . . .' Webster's New International Dictionary (2d.Ed.). It would defy common sense to conclude that the legislature intended in § 46a-51(10) to change the common meaning of the word `employer' to include `persons' who do not employ anyone, while excluding `employers' who employ fewer than three employees. Indeed, the very fact that the legislature used the term `employer' within its definition of `employer' in § 46a-51(10) indicates that it intended the word to have its common meaning, and that the definition was intended merely to narrow the class of `employers' — understood in its ordinary sense — to which the Fair Employment Practices Act, General Statutes § 46a-51 et seq., applies. Otherwise, the definition would be internally inconsistent." Perodeau v. Hartford, 259 Conn. 729, 736-37, 792 A.2d 752 (2002).
"[W]e conclude that the phrase `with three or more persons in his employ' in § 46a-51(10) was intended to modify both `person' and `employer' and, consequently, that § 46a-60(a)(1) does not impose liability on individual employees." Perodeau v. Hartford, supra, 259 Conn. 737. "In support of [its] conclusion, [the court] note[s] that when the legislature has intended for the provisions of the Fair Employment Practices Act to apply to persons other than employers, it has made its intention clear. For example, in § 46a-60(a)(4), (5) and (6), by contrast to § 46a-60(a)(1), the legislature specifically referred to persons as well as to employers." Id., 737-38. The reasoning of Perodeau, "applies equally to an alleged violation of § 46a-60(a)(8). Bolick v. Alea Group Holdings, Ltd., 278 F.Sup.2d 278, 281 (D.Conn. 2003)." Balog v. Shelton Restaurant, LLC, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 04 0084313 (August 2, 2004, Lager, J.) ( 37 Conn. L. Rptr. 659, 662).
The court finds that there is no allegation in the complaint that Douglas Bernier is an employer rather than an employee. In light of the aforementioned case law, the court grants the defendant's motion to strike the employment discrimination claim raised in count one against Douglas Bernier in his individual capacity.
B INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The plaintiff has also filed a claim of intentional infliction of emotional distress against Gonzalez in his individual capacity. The defendant argues that the claim is not viable as he is being sued in his individual capacity, that the alleged conduct was not outside the scope of his employment, nor was such conduct wanton, reckless, willful, intentional or malicious, and, therefore, he is entitled to statutory immunity as afforded by General Statutes § 4-165. Furthermore, Gonzalez argues that even if the claim is not barred by statutory immunity it is insufficient as a matter of law because it fails to set forth all the requisite elements of an intentional infliction of emotional distress claim. In her brief, the plaintiff contends that the actions and inactions of Gonzalez, as alleged in the complaint "show that Gonzalez had motivation, apart from any motives of the DOC, to cover-up Bernier's conduct towards [the plaintiff]. Whether the motivation was to help a friend, to avoid potential discipline himself, or to avoid potential civil liability, those motivations were beyond the scope of Gonzalez's duties as a warden . . . As such, he cannot gain the safe harbor of 4-165 immunity."Before the court addresses whether the intentional infliction of emotional distress claim is legally sufficient as a matter of law, the court must consider whether such claim against Gonzalez is barred by statutory immunity pursuant to General Statutes § 4-165. Section 4-165 provides in relevant part: "(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter."
"In order to determine if a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment." Martin v. Brady, 261 Conn. 372, 377, 802 A.2d 814 (2002). The court should consider whether there is any allegation "of a misuse of governmental authority for personal gain" or whether there is "any allegation of the extraneous manipulation of government authority in order to justify erroneous conduct." Id., 379. Merely alleging that the state official engaged in tortious conduct is not sufficient to overcome the doctrine of statutory immunity. See Shay v. Rossi, 253 Conn. 134, 172, 749 A.2d 1147 (2000) (the doctrine of sovereign immunity would be too easily overcome if "any tort committed by a state official would not be subject to sovereign immunity, because it could hardly be contended that any such official was statutorily authorized to commit a tort").
The court notes that Shay was overruled, in part, on other grounds. See Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003) ("we now overrule Shay v. Rossi, supra, 253 Conn. 134 . . . to the extent that . . . [it] holds that sovereign immunity does not bar monetary damages actions against state officials acting in excess of their statutory authority").
This principle was illustrated in an action recently brought in Superior Court. "In Martin v. Brady . . . our Supreme Court held that allegations that state police officers searched the plaintiff's home, once without a warrant and once pursuant to a fraudulently obtained warrant, destroyed the plaintiff's property and physically assaulted the plaintiff, were insufficient to defeat the police officers' sovereign immunity because the officers' conduct was, at all times, arguably related to their duties as state police officers and in furtherance of legitimate state purposes . . . Similarly, the defendant's conduct in [ Thomas v. Ocif], was also in furtherance of a legitimate state purpose related to his employment, namely the sheriff department's investigation into allegations of professional misconduct involving a deputy sheriff. That the person in charge of the investigation expressly requested that the defendant provide her with materials relevant to the investigation underscores, in the court's view, the important nexus between, the defendant's conduct and the defendant's employment. Accordingly, even if ultimately the defendant was not the proper person to transmit the personnel file materials, such conduct does not rise to the level of being `in excess of statutory authority' so as to defeat sovereign immunity, at least not as the doctrine has been explained and applied by our Supreme Court." (Citations omitted.) Thomas v. Ocif, Superior Court, judicial district of Waterbury, Docket No. CV 94 0166939 (July 30, 2003, Gallagher, J.) ("nothing the defendant is alleged to have done . . . was outside the scope of his employment as a deputy sheriff . . . [because] there is no allegation that the defendant misused his authority for personal gain or for illegal purposes").
In the pending case, the court must determine whether the plaintiff has made sufficient allegations to demonstrate that the defendant was acting outside the scope of his employment. Specifically, the plaintiff has alleged that in the course of responding to and interviewing the plaintiff concerning her complaint, Gonzalez did the following: (1) attempted to minimize, in other words downplay, Douglas Bernier's behavior; (2) violated DOC rules on at least three different occasions; (3) attempted to cover-up Douglas Bernier's harassing and intimidating conduct; (4) his alleged cover-up enabled the harassing and intimidating behavior to continue; and (5) his delay in investigating such complaint and suspending Douglas Bernier led to the creation of a hostile work environment.
The revised complaint alleges that Gonzalez violated the rules in the following ways: (1) he took the incident report and conducted his own investigation; (2) he failed to notify the DOC's affirmative action committee within five days of receiving the complaint; and (3) he failed to keep the plaintiff updated on the status of her complaint.
Reading the complaint in the light most favorable to the plaintiff, the court finds that she has not alleged facts demonstrating that Gonzalez was acting outside the scope of his employment because there are no allegations that he was acting for his own personal gain or for an illegal purpose. See Martin v. Brady, supra, 261 Conn. 379 (court must consider whether there is any allegation "of a misuse of governmental authority for personal gain" or whether there is "any allegation of the extraneous manipulation of government authority in order to justify erroneous conduct"); Thomas v. Ocif, Superior Court, judicial district of Waterbury, Docket No. CV 94 0166939 (July 30, 2003, Gallagher, J.) ("nothing the defendant is alleged to have done . . . was outside the scope of his employment as a deputy sheriff . . . [because] there is no allegation that the defendant misused his authority for personal gain or for illegal purposes"). In her brief, the plaintiff argues that Gonzalez "was acting in his personal interest because he no doubt contemplated that his actions and failures to take action in accord with DOC's own rules, regulations and directives would place him in personal jeopardy vis-a-vis disciplinary actions against him and potential civil liability." However, the plaintiff does not make any specific factual allegations in her revised complaint setting forth the basis for these statements.
In addition, the alleged misconduct, as enumerated above, all involved actions and errors that occurred during the course of Gonzalez's response to the plaintiff's complaint. Interviewing the plaintiff concerning the complaint and conducting his own inquiry into the alleged occurrences is within the scope of Gonzalez's employment as the warden of the facility. Accordingly, although Gonzalez's investigation may not have conformed to each and every DOC rule or regulation, the plaintiff has failed to allege facts demonstrating that Gonzalez was acting outside the scope of his employment. The allegations viewed in the light most favorable to the plaintiff demonstrate that Gonzalez's conduct and actions were in furtherance of a legitimate state purpose: responding to sexual harassment claims. The court next must consider whether the plaintiff has sufficiently alleged that Gonzalez conduct was wanton, reckless or malicious. Our Supreme Court has "never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, we have stated [that in] order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . Indeed, in some instances, the mere fact that an official has acted in excess of his or her authority may suffice to prove that the conduct was wanton, reckless or malicious." (Citation omitted; internal quotation marks omitted.) Martin v. Brady, supra, 261 Conn. 379. In Brady, the court found that "the plaintiff's complaint [failed] to allege facts, taken in the light most favorable to the plaintiff, to demonstrate that the defendants acted in a wanton, reckless or malicious manner. There [was] no allegation in the complaint from which [the court could] infer that the defendants' conduct was indicative of such a state of mind or that the conduct rose to the level of egregiousness necessary to be considered wanton, reckless or malicious." Id., 380.
In the case before the court, the plaintiff has made a conclusory statement that Gonzalez's conduct was intentional. The court finds that the allegation that Gonzalez intended to do the aforementioned acts, fails to demonstrate either "an extreme departure from ordinary care" and/or "more than gross negligence." Martin v. Brady, supra, 261 Conn. 379. Accordingly, the court finds that count three, as alleged against Gonzalez in his individual capacity, is insufficient to overcome the doctrine of statutory immunity.
Even if the court were to find statutory immunity inapplicable, the plaintiff would then still have to state a substantively sufficient claim for intentional infliction of emotional distress in order to survive the motion to strike. "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 the 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.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
"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).
In intentional infliction of emotional distress cases, Connecticut courts have set a very high threshold on the outrageous conduct requirement and have repeatedly found that allegations concerning condescending, humiliating comments and/or actions by co-workers or supervisors are insufficient as a matter of law to set forth such a claim. See Appleton v. Board of Education, supra, 254 Conn. 210-12 (the court found that the allegations were insufficient to rise to the level of extreme and outrageous where the school's principal made humiliating remarks about the plaintiff teacher in front of colleagues, subjected the plaintiff to multiple psychiatric examinations, made comments to the plaintiff's child about the plaintiff, had the plaintiff escorted from school grounds by police officers, suspended the plaintiff's employment and, eventually, forced the plaintiff to resign); Dollard v. Board of Education, 63 Conn.App. 550, 555, CT Page 14711 777 A.2d 714 (2001) ("While the conduct alleged here may have been distressful and hurtful to the plaintiff, it was no more extreme and outrageous than the conduct alleged in Appleton."); Aquavia v. Board of Education, Superior Court, judicial district of Amsonia-Milford at Derby, Docket No. CV 01 0075748 (July 22, 2003, Lager, J.) (court granted motion to strike intentional infliction of emotional distress where plaintiff teacher alleged that he was subject to ridicule, humiliation and unfair treatment); Baricko v. Chesebrough-Ponds USA Co., Superior Court, judicial district of New Haven, Docket No. CV 97 0395642 (December 26, 2000, Zoarski, J.T.R.) ("[t]he plaintiff fail[ed] to allege facts . . ., that [the defendant's] conduct, in refusing to set aside the plaintiff's termination, exceeds all bounds usually tolerated by decent society"); Stepney v. Devereux Foundation, Superior Court, judicial district of Litchfield, Docket No. CV 94 0065885 (November 1, 1995, Pickett, J.) ("The allegations of the revised complaint are legally insufficient to allege extreme and outrageous conduct. The plaintiff alleges nothing more than verbal abuse and the distribution of a content neutral letter in retaliation for her attempt to avail herself of workers' compensation benefits."); Scandura v. Friendly Ice Cream Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0529109 (July 5, 1994, Hennessey, J.) ("[T]he allegations of the plaintiff pertain to statements concerning her level of job performance and her ability or inability to successfully interact with others in an employment setting. These allegations fall short of alleging extreme and outrageous conduct.").
At oral argument, the plaintiff cited two Superior Court decisions to support her position that she has alleged sufficient facts to set forth a claim for intentional infliction of emotional distress. See Denault v. Connecticut General Life Ins. Co., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 95 0050418 (June 29, 1999. Corradino, J.) ("given this state's strong public policy as expressed in its statutes against discriminatory conduct and behavior in the work place, the court will not grant the motion to dismiss as to this count"); Champion v. Lipscomb, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 0512902 (April 23, 1993, Hammer, J.) ( 8 C.S.C.R. 562, 563) ("[t]he requirement that the conduct be `extreme and outrageous' is met where there is an abuse by the defendant of a `position, or a relation with the [plaintiff] which gives him actual or apparent authority over the [plaintiff], or power to affect his interests'").
In the case before the court, the plaintiff alleges that Gonzalez was responsible for subjecting the plaintiff to a hostile work environment, that he violated DOC rules concerning the investigation process, that he attempted to downplay Douglas Bernier's actions, that his inaction jeopardized the plaintiff's safety, as well as the safety of her co-workers, and, as a result of such actions, the plaintiff suffered severe emotional distress. Although the court recognizes that Gonzalez may have exercised judgment inappropriate to his duties as a supervisor, the allegations as set forth in the revised complaint fail to set forth conduct that is "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." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 211.
Accordingly, the court grants the defendant's motion to strike the intentional infliction of emotional distress claim against Gonzalez in his individual capacity on the ground that statutory immunity applies. Furthermore, even if the court were to have found that statutory immunity is inapplicable, the allegations of count three fail to set forth a legally sufficient cause of action.
C PUNITIVE DAMAGES
The defendant moves to strike the plaintiff's claim for punitive damages on the ground that the Connecticut Fair Employment Practices Act (CFEPA) does not authorize the award of punitive damages against the state. The plaintiff maintains that Superior Court authority permits the award of punitive damages in under General Statutes § 46a-104 and, therefore, the motion to strike should be denied.
The plaintiff's right to bring an action alleging violations of § 46a-60 is set forth in § 46a-100 and the relief that the court may award is set forth in § 46a-104, which provides: "The court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs."
"The General Assembly, by appropriate legislation, can waive the state's sovereign immunity from suit and authorize suits against the state . . . But the state's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication." (Internal quotation marks omitted.) Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963). "It is well established that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotations marks omitted.) Miller v. Egan, 265 Conn. 301, 329, 828 A.2d 549 (2003).
The plaintiff failed to cite any statute that explicitly permits the award of punitive damages against the state for a violation of § 46a-60. See Prigge v. Department of Children Families, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 02 0181467 (March 26, 2004, Alander, J.) (36 Conn. L. Rprt. 829, 832) ("The plaintiffs have cited no statute that expressly authorizes the award of punitive damages against the state for a violation of § 46a-58.") "Our Supreme Court has concluded that, absent express legislative authorization, the state's sovereign immunity bars an award of attorneys fees; Doe v. Heintz, 204 Conn. 17, 31, [ 526 A.2d 1318] (1987); an award of court costs; State v. Chapman, 176 Conn. 362, 366, [ 407 A.2d 987] (1978); and an award of prejudgment interest; Struckman v. Burns, 205 Conn. 542, 559, [ 534 A.2d 888] (1987). An award of punitive damages against the state is likewise barred absent explicit statutory authorization." Prigge v. Department of Children Families, supra, 36 Conn. L. Rptr. 832. When the legislature intends to award punitive damages, it does so explicitly. See, e.g., General Statutes § 42-110g(a) ("(a) Any person . . . may bring an . . . to recover actual damages . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.). Based on the foregoing principles, Superior Court authority has found that "an award of punitive damages in addition to attorneys fees is impermissible under § 46a-104." Trimachi v. Connecticut Workers' Compensation Commission, Superior Court, judicial district of New Haven, Docket No. CV 97 0403037 (June 14, 2000, Devlin, J.) ( 27 Conn. L. Rptr. 469, 471).
The court recognizes that there is currently a split in Superior Court authority as to whether punitive damages are available under actions brought pursuant to § 46a-100. See Shaw v. Greenwich Anesthesiology Associates, P.C., 200 F.Sup.2d 110, 117 (D.Conn. 2002) (acknowledging the split among state Superior Courts). Some courts have found that although § 46a-104 does not explicitly permit punitive damages, the legislature's intent to allow such damages can be inferred from the word "including" and the fact that there is no limitation in the statute concerning permissible damages. See Cantoni v. Xerox Corp., Superior Court, judicial district of Hartford, Docket No. CV 98 0582705 (February 3, 1999, Fineberg, J.) ( 24 Conn. L. Rptr. 38, 38) ("[t]here is no restriction in § 46a-104 against an award of damages for emotional distress or punitive damages. By use of the word `including,' the section in effect authorizes such damages as are available in a civil action."); see also Collier v. Department of Public Safety, Superior Court, judicial district of Middlesex, Docket No. CV 96 0080659 (May 3, 1999, Arena, J.) ( 24 Conn. L. Rptr. 433, 435) ("the doctrine of sovereign immunity does not bar an award of punitive damages" in an action brought under the CFEPA).
The Shaw court did not directly rule on the issue and instead found that "[w]hile [the] [p]laintiff is not denied the remedy of punitive damages, the attorneys fees awarded . . . [satisfy] any entitlement." Shaw v. Greenwich Anesthesiology Associates, P.C., supra, 200 F.Sup.2d 117.
Although the court acknowledges the Cantoni and Collier decisions, the court is compelled, pursuant to Supreme Court authority to find that punitive damages are not available in actions brought pursuant § 46a-100 because § 46a-104 does not expressly allow the court to award punitive damages. See Miller v. Egan, supra, 265 Conn. 329 ("statutes in derogation of sovereign immunity should be strictly construed . . . [and] [w]here there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity"). Accordingly, the court grants the defendants' motion to strike the plaintiff's claim for punitive damages in paragraph 46 of count one and paragraph 50 of count two, as well her prayer for relief on such counts.
In light of the court's ruling as to count three, it is unnecessary to address the defendant's arguments concerning count three.
D JURY CLAIM
The defendants move to strike from the jury list the plaintiff's employment discrimination claims brought pursuant to § 46a-60 on the ground that the plaintiff is not entitled to a jury trial on her causes of action against the state. The plaintiff objects to the defendants' motion on the ground that the proper procedural vehicle to challenge a claim for a jury trial is an objection, rather than a motion to strike. Alternatively, the plaintiff contends that a jury trial is appropriate because the first count alleges that Douglas Bernier acted in excess of his statutory authority, and, therefore, the claim is not against the state, it is against Bernier in his individual capacity.
The plaintiff also alleged a claim against Gonzalez in his individual capacity, however, the plaintiff by oral agreement with the defendant withdrew such allegations prior to short calendar oral argument.
At the outset of its analysis, the court notes that based on its above ruling striking the claim in count one against Douglas Bernier in his individual capacity, the remaining claims raised by the plaintiff under § 46a-60 are against the Department of Corrections, Gonzalez in his official capacity and Douglas Bernier in his official capacity. Accordingly, the court finds that all of the remaining claims are, in fact, actions against the state. See Miller v. Egan, supra, 265 Conn. 313 ("because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state"). The court, therefore, will analyze case law discussing the right to a jury trial in actions against sovereign entities.
Article first, § 19, of the Connecticut constitution states that "[t]he right of trial by jury shall remain inviolate." "This particular provision of our constitution has been consistently construed by Connecticut courts to mean that if there was a right to a trial by jury at the time of the adoption of the provision, then that right remains intact . . . It is generally held that the right to a jury trial exists not only in cases in which it existed at common law and at the time of the adoption of [the] constitutional provisions preserving it, but also exists in cases substantially [similar] thereto . . . At common law, legal claims [were] tried by a jury . . . [and] equitable claims [were] tried by a court . . . Equitable actions, therefore, are not within the constitutional guarantee of trial by jury." (Internal quotation marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, 509-10, 893 A.2d 371 (2006).
"Accordingly, in determining whether a party has a right to a trial by jury under the state constitution . . . the court must ascertain whether the action being tried is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course of action has roots in the common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right either directly or indirectly." (Internal quotation marks omitted.) Evans v. General Motors Corp., supra, 277 Conn. 510. "The historical test we apply is flexible and may require a jury in a new cause of action, not in existence in [1818], if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law . . . In determining whether an action existed at common law and involved a legal remedy, we look for guidance to Connecticut case law, to the common law of England and to federal and state jurisdictions that have considered the question." (Citation omitted; internal quotation marks omitted.) Id.
General Statutes § 46a-100 allows the plaintiff to bring an action in Superior Court alleging violations of § 46a-60 after receiving a release from the CHRO and provides as follows: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 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, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford."
"No principle of common law, prior to 1818, allowed actions against the state for wrongful discharge or related claims. Such actions, with or without a jury, simply did not exist against the state in 1818 . . . Thus, even if a claim under § 46a-100 is similar to an action which existed at common law, that action could not have been brought against the state." (Citation omitted; emphasis in original; internal quotation marks omitted.) Massey v. Connecticut Mental Health Center, Superior Court, judicial district of New Haven, Docket No. CV 96 0388542 (February 4, 1997, Silbert, J.) ( 19 Conn. L. Rptr. 89, 90). "`Since it cannot be maintained that under the common law in 1818 a jury trial was a matter of right for persons asserting a claim against the sovereign, the right to a jury trial in this case will exist only if the legislature . . . has made the right applicable.' Skinner v. Angliker, [ 211 Conn. 370, 380, 559 A.2d 701] (1989)." Id.
"`When the state, by statute, waives its immunity to suit . . . the right to a jury trial cannot be implied, but rather, must be affirmatively expressed.' Canning v. Lensink, 221 Conn. 346, 354, 603 A.2d 1155 (1992), quoting Skinner v. Angliker, supra, 211 Conn. 381. Section 46a-100 contains no provision regarding trial by jury. `In the absence of such a specification, we have concluded that the legislature intended that the action should be tried without a jury.' Canning v. Lensink, supra, 221 Conn. 354. Therefore, no right to a trial by jury exists in an action against the state under § 46a-100." Massey v. Connecticut Mental Health Center, supra, 19 Conn. L. Rptr. 90.
"Although acknowledging that it was a `close question,' one Superior Court has held that an action under § 46a-100 is substantially similar to trespass on the case, a common law cause of action available in Connecticut prior to 1818. It also determined that the remedy of § 46a-100 was legal rather than equitable. It therefore concluded that there was a right to a jury trial in such a case under the state constitution. Stedman v. Konover Construction Corp., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 457003 (December 6, 1994, Holzberg, J.) ( 13 Conn. L. Rptr. 79). Assuming that Stedman, which involved an action against a private employer, was correctly decided, there is still no support for the contention that such a cause of action against the state existed in 1818, and it is quite clear that the statutes do not explicitly provide for a jury trial in such a case." (Emphasis in original.) Massey v. Connecticut Mental Health Center, supra, 19 Conn. L. Rptr. 90 (granting defendant's motion to strike claim from jury docket).
Subsequent Superior Court authority has adopted the reasoning of Massey, holding that there is no right to a jury trial in actions brought pursuant to § 46a-100. In Trantolo v. Department of Transportation, Superior Court, judicial district of Hartford, Docket No. CV 97 0569475 (June 8, 1999, Teller, J.) ( 25 Conn. L. Rptr. 19, 21), the court stated: "The Massey court determined that 46a-100 contains no provision regarding trial by jury, and therefore, no right to a trial by jury exists in an action against the state under § 46a-100. The reasoning of Massey v. Connecticut Mental Health thoroughly and persuasively addresses the issues raised in the present case. The court concludes that no right to a jury trial exists pursuant to General Statutes § 46a-100. Accordingly, the defendant's objection to the plaintiff's claim for a jury is sustained, and the case is ordered stricken from the jury list." (Citation omitted; internal quotation marks omitted.)
The court also notes that the proper procedural vehicle to challenge the claim for a jury trial is an objection, not a motion to strike. See First Union National Bank v. Moore, Superior Court, judicial district of New Haven, Docket No. CV 990424489 (May 31, 2000, Silbert, J.) ( 27 Conn. L. Rptr. 312). In the present case, the plaintiff objected to the defendant's filing of a motion to strike. However, the plaintiff went on to substantively address the defendant's challenge to a jury trial claim in her memorandum in opposition. Therefore, the court finds that the plaintiff will not be prejudiced if the court, in the interest of judicial economy and efficiency, treats the motion to strike as an objection and addresses the merits of the defendant's claim.
The court, after reviewing the applicable language of § 46a-100 and § 46a-60, finds that neither statute explicitly provides for a jury trial. The court further finds the reasoning of the Massey court to be persuasive and holds that there is no right to a jury trial in an action alleging a violation of § 46a-60 against the state and/or its officers acting in their official capacity brought in Superior Court pursuant to § 46a-100. Accordingly, the court grants the defendant's motion to strike the plaintiff's demand for a jury trial on her claims against the state brought pursuant to § 46a-60.
IV CONCLUSION
In sum, the court grants the defendants' motion to strike the employment discrimination claim raised in count one against Douglas Bernier in his individual capacity, the intentional infliction of emotional distress claim against Gonzalez in his individual capacity, the claim for punitive damages in paragraph 46 of count one and paragraph 50 of count two, as well the prayer for relief on such counts, and the demand for a jury trial on her claims against the state brought pursuant to § 46a-60.