Opinion
No. CV 10-6011434S
December 1, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#104)
FACTS
The plaintiff, Vine Samuels, filed a one-count complaint on May 25, 2010, against the defendant, the state of Connecticut Department of Public Health. The plaintiff alleges that the defendant violated the Connecticut Fair Employment Practices Act (CFEPA), General Statutes §§ 46a-60 et seq. In the complaint, the plaintiff alleges the following. The plaintiff is a "black, African-American female citizen of the United States" who resides in New Haven. The defendant is an agency of the state of Connecticut and an employer within the meaning of General Statutes §§ 46a-60 et seq. The plaintiff worked for the defendant as a director in its office of multicultural health. Since August of 2005, the plaintiff worked for the defendant as a health program supervisor of the newborn screening program. The plaintiff was forced to share an office with the employees she supervised and was the only supervisor that did not have a private office in the Department of Public Health laboratory. When she received her own office, it was located on a floor separate from her subordinates and her job description was changed to exclude her from any oversight of technical or clinical matters.
Richard Emmonds, the plaintiff's former supervisor, the branch chief of public health initiatives, is a Caucasian male. Emmonds habitually treated the plaintiff rudely, was demanding, and embarrassed the plaintiff in front of other employees. Emmonds had a history of discriminating against African-American female managers. Martha Okafor, a section chief, resigned in approximately August 2005, because of discrimination.
Philip Sommers, the plaintiff's current supervisor and section chief of biological sciences, is a Caucasian male. Sommers has harassed the plaintiff since January 2008. He incorrectly told her, repeatedly and falsely, that she was not qualified for her job; that it was unfortunate that she was assigned to her position; and that she should go work for "the Regional people." In addition, the plaintiff alleges that Sommers discriminated against the plaintiff in comparison to her coworker, Joe Ubaike. Sommers refused to meet with the plaintiff and to accept her emails, while Sommers met with Ubaike and accepted his emails. The plaintiff was the only manager in her unit not allowed to attend the national symposium on newborn screening in November 2008, while Ubaike and Robert Howard attended. Howard is a Caucasian male and the assistant director of the state public health laboratory. Further, the plaintiff was the only supervisor not invited by Sommers to make a presentation for Tunxis College students on December 11, 2008.
The plaintiff filed an internal complaint with the affirmative action unit of the agency in September 2008. Sommers learned of the internal complaint in approximately February 2009, and began retaliating against the plaintiff for filing the internal complaint. Sommers stopped inviting the plaintiff to meetings which impacted the plaintiff's program, and held meetings with the plaintiff's subordinates which the plaintiff was not permitted to attend. Sommers did not inform the plaintiff of the events that transpired at such meetings, thereby negating her supervisory role in the agency.
The plaintiff filed an employment discrimination complaint with the commission on human rights and opportunities on April 20, 2009, and the commission conducted an investigation into her claims. On September 8, 2009, the commission determined that there was probable merit to the plaintiff's complaint against the defendant. The plaintiff further alleges that, based on her above allegations, the defendant has discriminated against and continues to discriminate against her because of her race, color and sex. Specifically, the plaintiff claims that the defendant retaliated against her because she filed her internal discrimination complaint, and that the defendant retaliated against her and subjected her to a hostile working environment because of her race, color and sex in violation of the CFEPA. The plaintiff further claims that as a result of the above allegations of discrimination and retaliation, she has suffered and continues to suffer economic loss and emotional distress.
The plaintiff received a release of jurisdiction from the commission on March 10, 2010.
On August 20, 2010, the defendant filed its answer and special defenses. The defendant admits certain allegations to the following extent. The plaintiff is a black female and African-American. The defendant is an agency of the state of Connecticut and an employer within the meaning of General Statutes § 46a-60 et seq. The plaintiff began her employment with the defendant in the office of multicultural health on February 23, 2001, and that she has been employed in the position of health program supervisor of the newborn screening tracking program since August 2005. The plaintiff's current supervisor, Dr. Philip Sommers, is a Caucasian male and the section chief of biological sciences, and became the plaintiff's supervisor in January 2008. Richard Emmonds is Caucasian and directly supervised the plaintiff between April 2005 and August 2006 as branch chief of public health. Joe Ubaike, a black male and the supervising biologist in the newborn screening laboratory, and Bob Howard, a Caucasian male and the assistant director of the state laboratory, were chosen to attend the national symposium of newborn screening in 2008. The defendant asserts that the two men were chosen due to their scientific and technical backgrounds, and the symposium's attendance limitation of two staff members. The plaintiff filed an internal complaint with the affirmative action unit concerning the alleged discrimination. Sommers learned about the internal complaint in February 2009. On September 8, 2009, after investigation, the commission on human rights and opportunities determined that there was probable merit to the plaintiff's complaint against the defendant.
The plaintiff filed a motion to strike the defendant's special defenses and a memorandum in support of the motion on September 3, 2010. The defendant filed an objection and memorandum in opposition to the motion to strike on September 15, 2010. The matter was heard at short calendar on October 12, 2010.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . 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). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . ." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). "Whenever a party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested . . . part thereof." Practice Book § 10-39. "Any statement of a matter of defense resting in part upon facts pleaded in any preceding statement in the same answer may refer to those facts as thus recited, without otherwise repeating them." Practice Book § 10-51. "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and [construes] the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Grant v. Bassman, 221 Conn. 465, 472-73, 604 A.2d 814 (1992). Special defenses are intended "to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Internal quotation marks omitted.) Whalen v. Gathoni, Superior Court, judicial district of New Haven, Docket No. CV 07 5012497 (February 8, 2010, Wilson, J.). "Connecticut is a fact pleading state." Vejseli v. Pasha, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172369 (July 21, 2004, Matasavage, J.), aff'd on other grounds, 282 Conn. 561, 923 A.2d 688 (2007). "[T]he total absence of any factual allegations" specific to the dispute "renders [the special defense] legally insufficient." U.S. Bank National Association as Trustee v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009, Abrams, J.) ( 48 Conn. L. Rptr. 345, 346).
A
In the first special defense, the defendant avers that the plaintiff failed to state a claim upon which relief can be granted. The plaintiff moves to strike the first special defense on the ground that defendant fails to provide any statement of material fact to support the special defense. In support of the first special defense, the defendant argues that a special defense that contains only a legal conclusion, and no factual allegations, is a viable special defense.
"A mere expression of the deficiency of the plaintiffs' statements fails to assert facts which show that the plaintiffs have no cause of action." Coss v. Steward, Superior Court, judicial district of New London, Docket No. CV 08 5007541 (May 20, 2009, Martin, J.). "A special defense which alleges nothing more than that the complaint (or a count thereof) `fails to allege a cause of action upon which relief can be granted' fails to . . . allege any facts [and] it does not even allege a cognizable legal conclusion." Pozoukidis v. Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 034 69 88 (February 13, 1998, Mottolese, J.) ( 21 Conn. L. Rptr. 382). "[A] party pleading a special defense must plead facts consistent with the special defense they are alleging." Senise v. Merritt Seven Venture, LLC, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0397413 (February 17, 2006, Rodriguez, J.).
The court recognizes that "there is a split of authority in the Superior Court as to whether a special defense is valid when it alleges that the plaintiff's complaint fails to state a cause of action." Carney v. Federal Express Corp., Superior Court, judicial district of New Haven, Docket No. CV 02 0467894 (February 19, 2003, Arnold, J.). "[One] line of cases rel[ies] on Scan Associates, Inc. v. Civitello Building Co., Superior Court, judicial district of New Haven, Docket No. CV 93 0350643 (January 24, 1994, Hodgson, J.) ( 10 Conn. L. Rptr. 646), and hold that a special defense challenging the sufficiency of a complaint is valid without specific facts in support of that challenge." Vejseli v. Pasha, supra, Superior Court, Docket No. CV 02 172369. This court rejects the reasoning of Scan Associates because, as succinctly stated by the court in Cluney v. Regional School District No. 13, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0089468 (June 16, 2000, Gordon, J.), cases such as " Pozoukidis v. City of Bridgeport, supra, Superior Court, Docket No. [CV 97] 346988 best [reflect] the spirit of the Supreme Court and the requirements of Practice Book §§ 10-1 and 10-50."
In the present case, the defendant failed to allege any facts to support its special defense claiming that the plaintiff failed to state a cause of action. The defendant merely asserts a legal conclusion. The defendant does not provide any factual allegations to demonstrate the veracity of its legal conclusion. Mere assertions of legal conclusions unsupported by factual allegations are legally insufficient to plead a special defense. Therefore, the defendant's failure to plead any facts to support its contention that the plaintiff failed to state a claim renders its first special defense legally insufficient.
Furthermore, the proper procedural vehicle for the defendant to challenge the legal sufficiency of the complaint is to file a motion to strike the complaint, not by way of a special defense. Practice Book § 10-39; Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). Practice Book § 10-7 explicitly provides that a motion to strike must be filed before the answer and special defenses. This special defense should have been raised by way of a motion to strike and, as such, it should have been filed prior to filing the answer and special defenses. Therefore, this special defense is procedurally improper. Accordingly, the motion to strike the defendant's first special defense is granted.
B
In the second special defense, the defendant avers that the court lacks subject matter jurisdiction over the plaintiff's claim. The plaintiff moves to strike the second special defense on the ground that the defendant fails to provide any statement of material fact to support the special defense. In support of the second special defense, the defendant argues in its memorandum of law that the plaintiff failed to raise her claim with the commission on human rights and opportunities within 180 days of the alleged discriminatory act pursuant to General Statutes § 46a-82. Relying on Levine v. Sterling, the defendant argues that "a trial court lacks subject matter jurisdiction over an action [seeking an administrative remedy] unless and until that remedy has been sought in the administrative forum." Levine v. Sterling, Superior Court, judicial district of Windham at Putnam, Docket No. CV 07 4005295 (July 14, 2009, Riley, J.).
In the present case, the defendant fails to allege any dates in the second special defense to support the conclusion that the plaintiff failed to bring her claim before the commission within 180 days of the alleged discriminatory act. Without alleging dates for the court to consider in evaluating the second special defense, the defendant fails to allege any facts to demonstrate when the 180-day period began or ended. Without providing any facts to demonstrate when the time frame began to run and ended, the defendant fails to provide any facts to support its legal conclusion. Therefore, the defendant's failure to allege the pertinent dates renders the defendant's second special defense legally insufficient.
Furthermore, the defendant seeks to have the court address subject matter jurisdiction in a special defense. "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Accordingly, a claim of lack of subject matter jurisdiction is not properly brought by way of a special defense . . ." Buddington v. Sterling Winthrop Inc., Superior Court, judicial district of New Haven, Docket No. CV 92 0327296 (November 12, 1993, Zoarski, J.); see also Cognata v. Gyn-OB Specialists, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 8623 35 09 (May 17, 1991, Katz, J.) ( 4 Conn. L. Rptr. 156). The proper manner in which to raise the issue of subject matter jurisdiction is a motion to dismiss and not a special defense. Accordingly, for the reasons discussed above, the motion to strike the defendant's second special defense is granted.
C
In the third special defense, the defendant avers that if the trier of fact finds that any conduct of the defendant was motivated in part by the plaintiff's race, color or sex, the defendant would have taken the same action for legitimate nonretaliatory reasons. The plaintiff moves to strike the third special defense on the ground that the defendant fails to provide any statement of material fact to support the special defense. In support of the third special defense, the defendant argues that it pleaded facts sufficient to demonstrate that if it committed any retaliatory act toward the plaintiff that it would have taken the same action for legitimate nonretaliatory reasons.
The framework for establishing a retaliation claim under the CFEPA requires that the plaintiff set forth a prima facie case of retaliation. Schumer v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV 09 5025809 (September 28, 2010, Alander, J.); see also Mele v. Hartford, 270 Conn. 751, 768, 855 A.2d 196 (2004) (retaliation claim discussed in context of Workers' Compensation Act). The burden then shifts to the defendant to articulate a legitimate nonretaliatory reason for its actions. Taylor v. State, Superior Court, judicial district of Hartford, Docket No. CV 98 0578141 (January 10, 2001, Hennessey, J.); see also Schoonmaker v. Brunoli, 265 Conn. 210, 245, 828 A.2d 64 (2003) (discussed in context of statutory regulation of state contracts). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under the allegations would support a defense . . . the motion to strike must fail." Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985).
In the present case, the plaintiff alleged that the defendant discriminated against her by not sending her to the national symposium of newborn screening, but sending two men instead; one Caucasian and one African-American. In its answer, the defendant counters the plaintiff's allegation by alleging that it sent the two men, not because of their gender, but because they had science and technical backgrounds. The defendant also asserts that it did not send the plaintiff to the national symposium because it was limited to only sending two staff members. The defendant's claims imply that the plaintiff did not attend the conference because she does not have a science and technical background and that the defendant based its decision not to send the plaintiff because of her qualifications, or lack thereof, not her gender. Viewing the pleading in the manner most favorable to sustaining its legal sufficiency, the defendant's allegations as to why it chose not to send the plaintiff to the national symposium alleges facts sufficient to support the conclusion that the defendant had a legitimate nonretaliatory reason for not sending the plaintiff to the national symposium. Therefore, the defendant's third special defense is legally sufficient to survive the plaintiff's motion to strike and therefore the plaintiff's motion to strike the third special defense is denied.
D
In the fourth special defense, the defendant asserts the Faragher/Ellerth defense. The plaintiff moves to strike the fourth special defense on the ground that the defendant fails to provide any statement of material fact to support this special defense. In support of the fourth special defense, the defendant argues that it did not know of harassment by the plaintiff's coworker, that it provided a reasonable avenue for complaints, that it acted reasonably to prevent the harassment and that it promptly responded to the plaintiff's complaint.
"In Ellerth and Faragher, [the courts held] that an employer is strictly liable for supervisor harassment that culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment . . . But when no tangible employment action is taken . . . the employer may raise [a special] defense to liability, subject to proof by a preponderance of the evidence: The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise." Hercun v. Miller Auto, Superior Court, judicial district of New Haven, Docket No. CV 03 0193641 (October 19, 2005, Wilson, J.); Esposita v. Bargain News, LLC, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 5002247 (September 5, 2006, Rodriguez, J.) (same); see also Brittell v. Department of Correction, CT Page 23354 247 Conn. 148, 166 n. 30, 717 A.2d 1254 (1998) (same); Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006) ("And under the second element, proof that an employee has unreasonably failed to use the employer's complaint procedure normally suffices to satisfy the employer's burden").
The plaintiff's allegations that she filed an internal complaint with the affirmative action unit concerning the alleged discrimination support the inference that the affirmative action unit is a part of the defendant's department and that the procedure in place for filing a grievance and for responding to a grievance was created and enforced by the defendant. Thus, the allegations support an inference that the defendant exercised reasonable care to prevent and correct promptly any harassing behavior, thereby satisfying the first element of its fourth special defense. Viewing the pleadings collectively, the defendant provides no facts to support the conclusion that the plaintiff failed to take advantage of any opportunities provided by the defendant to avoid or reduce her harm. This special defense has conjunctive elements and the defendant fails to plead any facts to support the second element. Therefore, the facts alleged are legally insufficient to support the defendant's fourth special defense and therefore the plaintiff's motion to strike the fourth special defense is granted.
E
In the fifth special defense, the defendant avers that the plaintiff failed to exhaust her administrative remedies as to her claims. The plaintiff moves to strike the fifth special defense on the ground that the defendant fails to provide any statement of material fact to support the special defense. In support of the fifth special defense, the defendant argues that "a trial court lacks subject matter jurisdiction over an action [seeking an administrative remedy] unless and until that remedy has been sought in the administrative forum." Levine v. Sterling, supra, Superior Court, Docket No. CV 07 4005295. The defendant further argues that the court lacks subject matter jurisdiction because the plaintiff failed to raise her claim with the commission on human rights and opportunities within 180 days of the alleged discriminatory act pursuant to General Statutes § 46a-82.
As discussed in the second special defense, the defendant's failure to allege any facts to support the claim that the plaintiff failed to bring her claim before the commission within 180 days of the alleged discriminatory act renders the special defense legally insufficient. Therefore, the defendant's fifth special defense is not sufficient.
Furthermore, the proper vehicle to challenge subject matter jurisdiction based on a failure to exhaust administrative remedies is a motion to dismiss. "The failure to exhaust administrative remedies implicates the subject matter jurisdiction of the court." Cuyler v. Board of Education of Danbury, 46 Conn.Sup. 486, 491, 757 A.2d 694 (1998), aff'd, 59 Conn.App. 339, 757 A.2d 635 (2000). "The claim of failure to exhaust administrative remedies, which implicates subject matter jurisdiction . . . should be raised by a motion to dismiss pursuant to Practice Book § . . . 10-31." Paul v. New Haven, 48 Conn.App. 385, 388 n. 2, 710 A.2d 798 (1998). The proper manner for the defendant to raise the issue of failure to exhaust administrative remedies is a motion to dismiss, not a special defense. Accordingly, for the reasons stated above, the motion to strike the defendant's fifth special defense is granted.
F
In the sixth special defense, the defendant avers that the plaintiff failed to mitigate her damages. The plaintiff moves to strike the sixth special defense on the ground that the defendant fails to provide any statement of material fact to support the special defense.
"By pleading mitigation of damages as a special defense, a defendant puts a plaintiff and the court on notice that it will seek to prove that such plaintiff has breached its duty to mitigate damages." Whalen v. Gathoni, supra, Superior Court, Docket No. CV 07 5012497. "[T]he duty to mitigate damages is not limited to personal injury actions, and . . . is often applied to economic damages." Id. "In order for a special defense to survive a plaintiff's motion to strike, a defendant must make factual claims to support the defense." Id.; see also Betts v. Bank of America, Superior Court, judicial district of Hartford, Docket No. CV 06 402739 (March 14, 2007, Rittenband, J.T.R.).
In the sixth special defense, the defendant merely asserts the legal conclusion that the plaintiff failed to mitigate her damages. The defendant fails to allege facts that demonstrate any act or omission committed by the plaintiff that supports the conclusion that the plaintiff failed to mitigate her economic damages. In Whalen v. Gathoni, the court held that the defendant sufficiently pleaded facts to support failure to mitigate damages as a special defense when the defendant alleged that "the plaintiff failed to return to work . . . and therefore, caused any pecuniary injury she suffered." Whalen v. Gathoni, supra, Superior Court, Docket No. CV 07 5012497. In Betts v. Bank of America, the case that the defendant cites for support, the defendant pleaded that "the plaintiff did not seek other employment" and the court held that such a statement provided a sufficient factual basis to support the special defense. Betts v. Bank of America, supra, Superior Court, Docket No. CV 06 4025739. Therefore, the defendant's failure to plead even such sparse facts demonstrating the plaintiff's failure to mitigate damages renders the defendant's sixth special defense legally insufficient.
CONCLUSION
Accordingly, for the foregoing reasons, the plaintiff's motion to strike the first, second, fourth, fifth and sixth special defenses is granted. The plaintiff's motion to strike the defendant's third special defense is denied.