Opinion
No. 5001959
May 11, 2007
MEMORANDUM OF DECISION
On October 5, 2006, the plaintiff, Mary Bachant, filed a six-count complaint against the defendants, Gregory S. Azia, M.D., and Gregory S. Azia, M.D., P.C. (the corporation). In count one, the plaintiff alleges that the defendants committed negligent acts during the course of her gall bladder surgery on October 27, 2004, her corrective surgery on November 2, 2004, and her medical treatment following those surgeries. In counts two and three, the plaintiff alleges that the defendants failed to obtain informed consent for the two surgeries. In count four, the plaintiff, who claims the defendants employed her from January 14, 2002, through October 30, 2005, alleges an incident of battery by Azia on May 27, 2005, while she was alone with him at the defendants' place of business. In count five, the plaintiff alleges the defendants intentionally inflicted emotional distress on her through the battery. Finally, in count six, the plaintiff brings a claim of respondeat superior against the corporation as to counts one, two and three.
On December 15, 2006, the defendants filed a motion to dismiss counts four, five and six for lack of subject matter jurisdiction. The plaintiff filed a memorandum of law in opposition to the defendants' motion to dismiss on January 19, 2007. The court heard the matter at short calendar on February 26, 2007.
DISCUSSION
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31.
In their supporting memorandum of law, the defendants argue that counts four, five and six should be dismissed for lack of subject matter jurisdiction.
The defendants argue that the plaintiff's battery claim is really a work-related claim of sexual harassment that has to be brought under the Fair Employment Practices Act, General Statutes § 46a-60, which falls within the jurisdiction of the Connecticut commission on human rights and opportunities (CHRO). The defendants argue that counts five and six, alleging intentional infliction of emotional distress and respondeat superior, relate to the battery claim and should also be heard by the CHRO. Because the plaintiff has failed to receive a release of jurisdiction from the CHRO, the defendants argue, the plaintiff has not exhausted her administrative remedies, and, consequently, her claims should be dismissed.
The plaintiff counters that she has alleged all of the elements for a prima facie case of battery and intentional infliction of emotional distress and is not required to obtain a release of jurisdiction from the CHRO for these common-law claims. The plaintiff argues that she does not allege that she left her employment in response to sexual harassment or discrimination, and therefore, she has not claimed a violation of the Fair Employment Practices Act. Further, the plaintiff argues that she does not seek the type of relief that the CHRO is authorized to provide, namely reinstatement and back pay, but rather seeks relief that the CHRO is not authorized to provide, namely compensation for the torts. She also asserts that the dismissal of counts four and five "would be absurd, inequitable and contrary to the United States Constitution." The plaintiff further argues that, in the "interest of convenience and judicial efficiency," all of these counts should be allowed to proceed as pleaded because of the doctor-patient fiduciary relationship, which is a "common nexus" between the medical malpractice claims and the battery and intentional infliction of emotional distress claims. Finally, the plaintiff asserts that since count six, alleging respondeat superior, applies to counts one though five, and counts one, two and three "are not included in the [d]efendants' [m]otion to [d]ismiss, it would be inappropriate for the court to dismiss [c]ount [s]ix."
In her memorandum of law, the plaintiff incorrectly states that count six applies to counts one through five. In the complaint, however, count six incorporates the allegations in counts one through three only.
General Statutes § 46a-60(a)(8) prohibits employers from harassing any employee on the basis of sex. That section defines sexual harassment 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." That section does not address common-law claims of battery or intentional infliction of emotional distress in the workplace, whether sexually motivated or not; as a result, such claims do not fall within the exclusive jurisdiction of the CHRO.
"[W]hen assault and battery are alleged arising out of allegations of sexual harassment, courts have uniformly rejected arguments that the plaintiff must first exhaust administrative remedies under the Connecticut Human Rights and Opportunities Law before bringing the common-law claims, or that those claims are preempted by the statute." S. Harris, 14 Connecticut Practice Series: Connecticut Employment Law (2005) § 2.4, p. 104, citing Williams v. Trefz Corp., Superior Court, judicial district of Danbury, Docket No. CV 99 0335231 (August 20, 2001, White, J.) (granting motion to strike special defenses of preemption by Fair Employment Practices Act and failure to exhaust administrative remedies as to common-law torts of intentional assault, negligent supervision, negligent infliction of emotional distress, and intentional infliction of emotional distress). The CHRO has jurisdiction to hear claims of discriminatory practices; General Statutes 46a-82(a); but the Superior Court maintains original jurisdiction over common-law tort claims. See St. Germaine v. Ensign-Bickford Co., Superior Court, judicial district of Hartford, Docket No. CV 539310 (July 11, 1997, Hale, J.) [ 20 Conn. L. Rptr. 232].
In count four, the plaintiff sets forth a common-law claim for intentional battery. Count five alleges intentional infliction of emotional distress as a result of the battery. There are no allegations of employment discrimination under the Fair Employment Practices Act, § 46a-60. The plaintiff's claims are common-law tort claims; she does not need to seek an administrative remedy with the CHRO before bringing these claims in Superior Court. It is, therefore, not necessary for the court to consider whether it would be futile for a plaintiff to exhaust administrative remedies with the CHRO before commencing this action in the Superior Court.
Further, it appears the defendants moved to dismiss count six by mistake. In the plaintiff's complaint, count six clearly incorporates the medical malpractice allegations in counts one, two and three. Count six does not relate to the battery claims which the defendants argue fall under the CHRO's jurisdiction.
CONCLUSION
For the above reasons, the defendants' motion to dismiss counts four, five and six is denied.